*1 That result the learned trial judge sought to accomplish. jur- His premises isdiction cannot he denied. 1 Dunnell, Dig. Minn. & (2 Supp.) ed. 666. say We cannot that decision is mani- § festly and palpably against evidence, so should not re- Bishop, verse. Charest v. 162 N. W. 1063.

But reargument has shown the decision minor wrong some Mr. aspects. paid Enkema was Mrs. Meacham herself. by $300 The amount allowed Mr. should Enkema’s estate be reduced amount. It go $10,000 should back to Mrs. Meacham because the withheld from $30,000 in settlement of paid the case was to cover all attorneys’ chargeable fees to her. The Enkema claim should be further reduced amount credited to Mr. $75 Fletcher. The latter advanced that for ex- amount Enkema penses, but it does not used it for that appear purpose. he Mr. Fletcher should also credited with $61.73, be which is the total of expense paid miscellaneous items out and that him, amount Mr. Mr. charged to Grimes and McDowell.

With these modifications, judgment affirmed.

T. J. WAKELY v. COUNTY OF ST. LOUIS.1

August 7, 1931. 28,404. No. 1Reported in 240 N. W. 103. *2 for Adams, appellant.

Charles E. Collins, respondent.

D. T. filed a brief curiae, amici Mayall, Holmes & Baldwin, Baldwin, County. St. Louis League of Taxpayers on behalf of the J. Hilton, clay surfacing from his land and sand for Plaintiff furnished bill county’s of defendant roads. He filed a repairing and one county board, ap- which disallowed it. Plaintiff therefor with the trial was court, plaintiff granted to the district and after pealed in with interest and costs. Defendant recovery the sum of $153.07 and conclu- findings moved in the alternative for amended of fact trial. granted sions of law in its favor or a new The court of fact and made one addi- slight findings some amendments in any change tional refused to make its conclusions finding, but law and denied the motion for a new trial. only

On this of error is that the court appeal assignment in for the reason denying erred defendant’s motion for a new trial findings conclusions of law are not sustained They fact as amended. are: land from during year

“1. That 1928 the furnished plaintiff him and which were used 2,355 yards clay owned cubic sand duly legalized and estab- surfacing repairing and otherwise county county. lished road located in St. Louis pur- furnished and used clay “2. That said and sand were so duly plaintiff between the and the agreement suant to an made county of said county and commissioner elected', qualified, acting and in which said land commissioner’s district elected from the agreed plaintiff situated, pursuant agreement road were and said clay county agreed said and sand commissioner furnish county pay stipulated price; would therefor that said that said making said contract and of said furnishing at the time plaintiff and was an of said as a road fore- clay employe sand district, man in commissioner’s and said commissioner as- said county making agreement; sumed to act for said said that said and contract agreement void; said ivas made or by plaintiff county commissioner, and said without fraud or and purpose intentionally law; collusion to evade or violate the clay pos- said and sand cannot be restored to the practically session of the plaintiff.

“7. That said board at no time took any action by resolu- tion otherwise, or authorizing the said surfacing repairing- work in which said clay sand used, were and never authorized said county commissioner to enter into said agreement in behalf carry out said work, and never by resolution or *3 other official in action any manner ratified or confirmed said agree- ment.”

Findings Nos. three, four, five, and six refer to the amount of benefits received, presentation of the claim to the county board, its disallowance thereof, and that it has not paid. been

We are here confronted with question the sole whether the findings of fact justify the conclusion of law that plaintiff was en- titled to recover. The contract was not ultra It vires. was such as the county had full authority make. It was invalid because not made by any resolution passed by the county agree- board or ment entered into between it as a whole acting as such and plaintiff.

Plaintiff was not a volunteer as was the in situation the case Johnson v. Unorganized School Dist. 159 Minn. 226, 198 N. W. 463. The improvement here in which the material was used was county road work.. The evidence indicates that the material was selected by officers or employes the county; the county engineer supérvised the road work; and that the work was done, so far as appears, by men employed paid by and county. the

616 sub- and seven. The fact Nos. two findings urges

Defendant as formally acting board is that the findings those stance of and did material of this purchase the did not authorize a board For all ratify purchase. the formally, or as such board not, acting the board member of individual findings, in each those appears and material furnishing of knowledge of the may have had full not do and we effect, to that finding however no There is its use. to the was furnished material finding it. The consider legitimate improvement in a in faith good and used facie prima makes a to the and was of benefit county board being There received. to the extent of the benefit recovery case the conclu- made, case so to overcome the the evidence nothing thereby. sion of law is sustained of this court both before and after

The numerous decisions 362, 139 Village Goodhue, of First Nat. Bank Minn. case rule as L.R.A.(N.S.) recovery N. sustain here. The 599, 84, W. re a municipal corporation laid down in the cases is that where con or of another under and to a money property pursuant ceives contract subject corporate powers, within its upon tract or purpose made and carried out and without is invalid because not entered law,, intent to violate or evade the but corporation having power officers of the into or ratified re statutory comply or for some other failure to contract, by the or so received is retained quirements, money property result legitimate corporate purpose, to a corporation and devoted money furnishing so corporation, in benefits to the one ing quasi contract to the extent of the bene may recover property City Laird Norton Yards v. corporation. fits received (N.S.) 473; N. 41 L.R.A. 114, 644, 134 W. Rochester, Callaway, Foundry Village Co. v. Fargo No. I. Min. v. School Dist. 584; N. Oliver Co. W. *4 624; N. 207 W. 949; Tousley Thompson, N. W. v. 650; Lundin 208 N. W. City Charles, v. of St.

Frisch N. W. 888. Valley, of Butternut Township in briefs of ably advanced the points considered the We have Spe- cited therein. the curiae and the cases and of amici appellant A necessary. reading we do not deem thereto reference cific are they readily distinguishable from this indicates those cases case. affirmed.

Order

Wilson, C. J. (dissenting).

I dissent. J.

Loring, (dissenting). road in by The Peterson was constructed contractors 1924 or it ivas not in con- satisfactory 1925. As left the contractors county record engineer dition for travel. So far as this shows the any authority in work in charge district, of the road the without in 1928 men to resurface county board, employed whatever from the from clay agreement the road with taken under land. plaintiff’s clay. refused to for the Had the board pay The board clay the un- resurfacing employes and had its taken authorized with I could illegal plaintiff, agree der an unauthorized or contract where, wholly itself Avas un- majority; project but I court, trial can see no basis as here found authorized, not quasi contract. The should be com- the doctrine of not author- which it did not Avantand did pay benefits pelled it cannot return. things the nature ize either author- majority municipality In cited the cases money, property, plaintiff’s which absorbed tlie project ized the under condi- accepted the benefits municipality or as a services^ might accept or re- it a choice as to whether gave tions which fuse them. J.

Stone, (dissenting). Loring. of Mr. Justice opinion I concur Reargument. After filed: 31, 1931, December On Avas folloAving opinion J. Hilton, is eliminated: original opinion folloAving of the portion furnished to the material was finding that tlie

“The board improvement by legitimate faith in a used *5 a facie case for prima makes county of to the and Avas benefit being nothing received. There of the benefit recovery to the extent made, the conclusion to overcome the case so in eAddence thereby.” laAVis sustained therefor: is substituted folloAving

And and the plaintiff commissioner county that finding “The or collusion or matter without fraud in in the good acted faith laAVand that to or violate the intentionally evade purpose case out a facie prima therefrom makes received the benefit county Good faith of actual benefits received. recovery of the amount If in this kind of cases. an element important to us to be seems that he municipality or knoAvs corporation or of a agent an officer in acting good then he is not act, contract or authority has no say act. cannot doing We making the contract faith findings, overcome other conclusively that the case so made findings. of law is sustained and the conclusion operations its road county repair board conducted how the “Just large covers a area. It county prob- Louis clearly shoAvn. St. is not every board to go for the entire into be ably practical would not upon roads and decide each small re- inspect of the part made. The commissioner the district to be or betterment pair duty of the its keep hand. It is the near at affected use. An public improvement and in condition in repair roads board, resulting of member of the by direction made benefit, of such should be paid to the extent county, to the in benefit loss.” any not suffer does for. The changed. is not result Order affirmed. J.

Wilson, C. (dissenting).

I dissent.

Loring, J. (dissenting). with an involun- dealing elementary persons It is

I dissent. functions, governmental exercises corporation tary public legal to know the its county, are hound limitations on aas such business, County Ramsey, Sandeen v. doing methods of management county’s that the busi 243; 124 N. W. acting board; board as a individual is vested ness have acting independently authority no body members County, Bd. of Commrs. of Co. Dakota county, Gardner bind the Johnson, rel. Erb v. 107 N. W. State ex 33; act an individual mémber must that an unauthorized 404; *6 way board in order to make adopted by be ratified or some the County the of Minn. upon county, Stearns, Schmidt binding Wing- True v. Bd. of Co. Commrs. of Crow 358; 24 N. W. Minn. 86 N. W. 102. County, only question

In at bar before this court whether the case the is findings of the of fact. There supported by the conclusion law, cross which find- appeal challenges is no of error or the assignment briefly clay are that and sand were ings. findings plaintiff’s Those agreement to county plain- in a road a void between pursuant used county the district in which plain- tiff and the commissioner from authority but land who assumed without lay, tiff’s finding is a county. to for the There further defendant act it is by practicable the and sand but not clay benefited plaintiff. them to restore they findings right here would fall short stopped

If these purchase facts from which a contract of could be and in implied, they fall the the authorities likewise short of facts sufficient light quasi contractual the Neither liability upon defendant. impose way. in any do show There would to be a rat- they estoppel have county acting through the adoption by body ification or the which legally place accept- made the contract in the first or the could have left under which defendant a choice ance of benefits circumstances No such action or such accept. it Avould circumstances whether On the we a definite find- by contrary, the court. have are found did not authorize or the project the board the county ing in any never resolution or other official action by “and contract agreement” or said and that the board confirmed ratified manner above, disallowed the claim. As stated go we cannot behind this It is not finding. attacked, and we even if by are bound justified evidence a different inference.

In the case of True v. Bd. of Co. Commrs. Crow Wing County, N. W. 293, 86 102, 103, engaged the sheriff plaintiff as counsel charge take of some tax cases in the of the attorney. absence The chairman of board at present trial, in a resulted substantial recovery by the county, but the board as such took no action in the matter.' said This court [83 294]: of county “The board charge commissioners have statute sole *

of the affairs of *. county, employment of counsel * * * solely rests county board. plaintiff’s employment by sheriff wholly Avas Fo an doubt, unauthorized. unauthorized employment may this kind be ratified the board commissioners, but there Avas no ratification this in stance. The chairman of power the board had no ratify approve the act of the sheriff. The ratification of act of such em ployment could be-effected or only made some official action on the board taken with part reference thereto. Fouke v. Jack Iowa, 51 N. W. 71.” son,

In 293, the True 83 Minn. 86 N. case, 102,W. it suggested, was here, as it is that the received the benefits and retained the fruits of the -and bound litigation compensate Avas plaintiff for his as There, here, good services. there was faith in the sense that perpetrated. fraud Avas court no further said Minn. [83 295]: emergency “Whether AArasan justifying there the sheriff in em It is a ploying counsel is not before question the court. .outside which do. Avehave if such nothing Even had appeared, and employment necessary the was apparently and Avhether proper, the same should be ratified and approved Avas a matter resting within Avholly the discretion of the county commissioners, which the beyond discretion is control the courts. There is nothing in the the suggestion county, having received and retamed the the toas litigation, hound compensate plaintiff his fruits of

621 received the the because litigation The services. fruits of paid It was a tax and was into its alternative. had no other it, to refuse to receive or to return powerless it was treasury, and reasons, judgment it. For these the of the received having it after City affirmed. See Horn v. and must be proper, below was court N. 388.” 369, Minn. 83 W. Paul, 80 of St. the by majority with the statement agree

I cannot and plaintiff, together commissioner the of the part on the prima makes out a facie case for re- county, to the with benefits majority opinion do not so hold. The cases cited the covery. element, some addition benefits every In one of them there is In Nat. case First controlling. to be the received, appears Minn. N. W. 43 362, 599, 120 139 Village Goodhue, Bank v. from bank into money put received the was (N.S.) 84, L.R.A. the village appropriated council treasury by and the village the In Callaway case, the powers. within its purposes legitimate village repaired used the water 584, 181 N. W. 273, 148 Minn. installed under the void which ivas heating plant and tank 41 644, N. W. case, 114, 134 In the Rochester contract. Minn. and de- accepted coal burned 473, the (N.S.) L.R.A. N. 400, Min. 193 W. case, In I. Co. the Oliver fendant. ratified void contracts in effect held that the voters 949, it was satisfy of bonds to issuance authorizing the subsequently appeared it further contracts; and of those obligations erected the schoolhouses which were used corporation as a district Minn. 261, Tousley Thompson, In the contractors. a contract which this county board made 624, Hennepin N. W. In Lundin v. Township make. authorized to it was court held no ac- 214 N. W. there was Valley, Butternut contract, the unauthorized built under bridge ceptance Charles, of St. City In Frisch v. recovery. ivas no there lot from a member of the bought city N. W. 171, 208. brought for restitution of suit was taxpayer’s council, un- to such restitution that was entitled court held This price. *8 made on improvements that the had city shoAAdng aAvas less there lot. 622

No case lias in which my Minnesota come attention the mere by receipt public corporation, subject of benefits matter where of ivas of such a corporation the benefits character that the had no them, choice but to retain sufficient it to pay to bind for -such even where the benefits, purchaser furnishing them did so in ignor- of authority ance of the lack officer with whom possessed dealt. he with the I v. majority

Contrasted cases cited find True Bd. of Co. Commrs. of 83 Minn. Wing County, 293, Crow 86 102, Young N. W. and v. Board of Education, 55 385, N. A. S. R. 1112, 340, W. in which the fact that had defendants no choice ivhether they reject as to would of retain the results void contracts was as regarded controlling. Cases this outside jurisdiction support the rule True v. Bd. of Co. Commrs. of Crow Wing 86 N. W. 102. County, 293, Worrell v. Mfg. Co. City Ashland, Ky. L.R.A.(N.S.) 880, S. W. therein; Tp. cases cited v. Wallace, Cross 57 Okl. 157 P. Nat. Bank 898; Agawam v. South 128 Mass. In Hadley, 503. St. case Kreatz Cloud School Dist. 79 Minn. 14, 18, 81 N. W. court 533, 535, recognized this there necessity of being more receipt than the mere benefits to bind public corporation the benefits such a cases where are of character that they cannot be court returned. said This [79 18]:

“The work was of such notable character and continued for such length time, under such circumstances, as raise pre- it was with sumption that the' common consent the district.” No such circumstances are found exist here. find in

We some cases a reference “the general obligation to do justice” recovery. as authorizing a difficulty with that phrase as a definition or of human rule conduct is that it expresses an end sought to be rather than means of attaining it. a As guide to conduct affords little help. Justice the abstract attaining may without depend rules largely upon the point law, of view. The rules the common of equity, and of written developed by generations law have been of experience in seeking to *9 and understandable rules is down definite lay To justice. attain gener- but to a public; rely upon bench, bar, general to helpful justice” do is to cast aside obligation general as “the ality such and to venture out an un- ages upon wisdom the accumulated conjecture. charted sea money expended according their a to have right have

Taxpayers In my judgment those limitations and restrictions. to certain I think enough. far the order stretched have been limitations be reversed. should J.

Stone, (dissenting). I Loring said, in all that Mr. Justice has must Concurring yet following. leave to add the ask what result, upon legal ground it correct does the

Assuming liability? Good faith is said to “an im- majority base be opinion That, together receipt benefit, element.” is portant authority to make out a facie case. What there prima said is My is not indicated. search has such conclusion failed dis- a to concur. any. my inability close Hence “A to recover for services plaintiff seeking rendered without the of the defendant has the burden of tailing consent himself out of right well-established rule that no one has a force himself Quasi as his creditor.” upon Keener, another Contracts, 341. in this a municipal The debtor case is corporation, acting through board. The latter is a creature of statute, with only authority thereby the limited conferred. Its annual expenditures budgeted, funds must be and disbursements for any pur- beyond the levies therefor pose regular prohibited. are G. S. 1923 A (1 1927) 811-818. Mason, county commissioner §§ violating vote, them is “contract, bargain” guilty of a gross misde- meanor. 819. Of what use are such prohibitions by legis- § aid latures even the courts careless officials, unmindful of their if. acting good faith, but to set them at naught? 'duties The result me, plain derogation is it seems both of here, the statutes in public policy they the wholesome declare. If question the prec- G24 may easily that on the civil side followed, is to be result

edent “bargain,” for the of a hold a liable result court must commissioner convicting on criminal while side making it. gross misdemeanor v. F. H RETZLAFF AND OLESEN PAUL OTHERS.1 28,340.

No. *10 September 1931. 1Reported in 238 N. W. 239 N. W. 672.