No. 17,769 | La. | Mar 28, 1910
Plaintiff brought this suit against defendant for defendant’s alleged breach of contract, and asked for judgment in the sum of $12,092.19 actual damages, and $17,160.24 profits’ loss on the contract; and he claims, in addition, $16,000 as damages to his reputation.
He entered into a contract with the parish of Vernon on the 4th day of May, 1908, to provide material and build the courthouse as per plan and specifications. He claims that he was to have all of the materials in the old courthouse building.
The amount originally agreed upon to build the courthouse was $88,000.
Some time after the contract had been entered into, an additional amount of $2,121.70 was agreed upon to be paid for an asserted change in the foundation of the building.
There was some delay before he began to do the work, which occurred, as he represents, on the request of defendant. He began the work on the 7th day of March, 1907.
Plaintiff states that on the 10th day of August, 1908, without cause, the police jury adopted an ordinance declaring the contract in question an absolute nullity.
The defendant, on the other hand, denied all indebtedness to plaintiff, and averred that the contract was a nullity from the first.
Defendant claimed $6,000 for materials taken from the old courthouse to erect the jail, which plaintiff had contracted to build at the same time that he contracted to build the courthouse.
The defendant charged the plaintiff and the architect with fraud and collusion to the amount of about $1,000 in matter of the jail, and charges that plaintiff and this architect were preparing to defraud the parish in matter of the contract to build the courthouse.
The defendant claimed an amount of $0,-000 in reconvention,' to wit, $1,000 paid by the parish in error brought about, defendant alleged, by false representations of the plaintiff, and $5,000 for materials belonging to the defendant used by plaintiff, to which he had no right.
At defendant’s instance, a writ of sequestration was issued, and the material which the plaintiff was removing was seized.
The judge of the district court rejected plaintiff’s demand and gave defendant judgment in reconventional demand for $10,000 instead of $6,000, prayed for.
There was patent error, as relates to $4,-000, owing to an oversight of the court, as tho defendant had only asked for $6,000 in re-convention.
The defendant entered a remittitur for said amount.
The police jury adopted an ordinance regularly on the 6th day of August, 1907, and made provisions for erecting a courthouse. The ordinance contained all that was essential. In addition, specifications were adopted and'plans prepared. An architect was selected, and a superintendent of the work employed.
Plaintiff was awarded the contract which the ordinance authorized to be made.
The police jury directed its president to sign the contract in accordance with the ordinance.
He departed from the terms and conditions of the ordinance and contracted on a cash
The ordinance in question provided for paying the contractor and builder in 10 equal installments, represented by 10 certificates of indebtedness, which were to be delivered over to the contractor-.
The president did not choose to follow this provision of the ordinance. Instead of contracting to pay for the building in 10 years, as authorized by the ordinance, the contract stipulated that the payment would have to be made in about one year; that is; about the time it would take to complete the building.
We. will here state, in a transaction involving the payment of a large amount even between private individuals, the terms of payment are of importance.
In a private transaction, if a person directs an agent to enter into a contract, the consideration for which is to be paid in 10 years, the agent would be greatly at fault if he sought to bind his principal to pay in a shorter time.
The contractor began work on the building when the police jury awakened to the necessity of finding the cash necessary to pay the whole amount due without awaiting the delay provided for in the ordinance. They took steps to find a lender. No one could be found to make the loan on a cash contract, to which we have referred, based on a credit ordinance.
Financiers generally have some idea of the congruity. They evidently were not attracted by a credit ordinance and a cash contract based thereon. The result was that there was an absolute failure on the part of the police jury to find the money. The police jury did not have it, and there were no prospects in the future to realize an amount sufficient.
The police jury, in addition to the ordinance to which we have referred, sought to obtain the amount by an ordinance setting aside a three mills’ tax to pay the contractor.
The terms were changed from 10 to 4 years within which the parish would pay the amount.
This also signally failed.
The police jury, about the same time, sought to make it appear that the intention in adopting the credit ordinance was to adopt a cash ordinance.
.This expression of the intention at the time that the ordinance was drawn could not prevail against the plain expressions of the ordinance providing for credit payments in equal installments in-10 years’ time. The terms of the ordinance were too plain to admit of an intention to the contrary on the part of those by whom it was adopted.
This attempted interpretation of the ordinance influenced no one; no one would lend money- to the parish.
The ordinance could not be changed by subsequent declaration.
We have before stated that there was some delay. During that delay, differences arose between the contractor and those in charge of the parish interests.
The officers of the parish and others, looking on while the foundation of the building was being laid, were not favorably impressed. There were complaints.
There was an election for police jurors held about that time, and new and different members of the police jury- were elected.
It afforded an opportunity to the defense in argument on the trial to argue that the change in the membership of the police jury grew out of the unwillingness of taxpayers to retain in office members who had not been sufficiently careful in entering into a contract of great local importance.
But be that as it may. If the witnesses for the plaintiff are to be believed, the contractor’s work was excellent and all that the contractee had a right to expect. If the wit
After tbe police jury bad failed to realize an amount to meet payment, as above stated, tbat body inquired of tbe contractor in regard ,to bis intentions. His reply was tbat be was willing to continue with bis work under bis contract; tbat be would make no change and expected tbe cash as stipulated in tbe contract. Whereupon tbe police jury presented a written contract, drawn in accordance with tbe ordinance first above mentioned, containing all that tbe ordinance provided in regard to credit payment, and offered to deliver certificates to be met by amounts which the police jury bad bound itself to provide in order to meet these certificates.
Tbe contractor positively refused to sign this contract and reiterated tbat be would stand by tbe original contract. He stopped with tbe work and instituted this suit.
Tbe defendant in its answer made aver-ments for a sequestration and prayed for tbat writ to issue and for sequestration of tbe material, consisting of tbe débris of tbe old building, of which plaintiff bad possession and part of which be had used.
In our opinion, tbe contract was null. It bad not been drawn in accordance with any provision of law and gave tbe plaintiff no right of action as bis contract bad no validity ; it never bad any validity.
Tbe police jury is a body having delegated powers to adopt ordinances. A record is kept of them. If legally adopted, they are binding and cannot be set aside by subordinate authority. It is not in tbe power of a building committee to set aside tbe plain ex-Xjression of an ordinance, nor tbe president of the police jury.
Tbe next question presented is whether tbe police jury could ratify this contract and es-top itself.
Tbe affirmative proposition in answer to tbe foregoing is not sustained by authority.
Above we said tbat tbe act of a private agent could not be binding upon bis principal when tbe agent exceeded bis authority.
Tbe principal in a private contract who enters into a contract through an agent can ratify tbe act of bis agent, but a police jury, whose powers are defined by' tbe Legislature, has to follow tbe statutes. They are not free to act as in tbe case of private individuals. They cannot go beyond tbe scope of their authority by attempting to ratify that which originally bad no existence. They cannot do indirectly that which they bave not the authority to do directly.
In this instance, at tbe time, there remained one of two things to do; that was for tbe contractor to sign tbe contract drawn in accordance with tbe ordinance, or start anew.
Tbe building of a courthouse, may be paid from tbe estimated surplus of tbe parish revenues. The contract may be made on cash realized or to be realized from certificates.
This view was expressed in Murphy v. St. Mary, 118 La. 401" court="La." date_filed="1906-12-10" href="https://app.midpage.ai/document/murphy-v-police-jury-7165779?utm_source=webapp" opinion_id="7165779">118 La. 401, 42 South. 979; also in the Dupuy Case, 116 La. 785, 41 So. 91" court="La." date_filed="1906-03-26" href="https://app.midpage.ai/document/dupuy-v-police-jury-7165448?utm_source=webapp" opinion_id="7165448">41 South. 91, and in Bienville Parish Case, 48 La. Ann. 333, 19 So. 282" court="La." date_filed="1896-01-21" href="https://app.midpage.ai/document/louisiana--northwest-railroad-v-police-jury-of-bienville-parish-7196716?utm_source=webapp" opinion_id="7196716">19 South. 282. Neither was done in this instance.
Tbe contractor, according to tbe ordinance, was to receive tbe certificates themselves. It was different in tbe contract; only cash was tbe consideration. He (plaintiff) positively refused all tbe conditions of tbe ordinance. Without regard to surplus or parish revenues to be laid aside and other provisions to raise funds, tbe plaintiff insisted upon cash in direct violation of tbe provisions of law tbat no warrant shall be issued unless provision has been made to meet it by laying aside sufficient fund.
The contractor cannot be considered as a third person in matter of this contract.
He is not a third person under tbe law.
It is well settled by repeated decisions that •under the circumstances here the parish can-mot be estopped and concluded.
It follows from the foregoing that plaintiff lias acquired no right, either under the original contract or under the attempted ratification.
We extend our inquiry further.
This brings us to the demands of plaintiff :for payment for particular items.
The first is for damages to his reputation.
Even if the contract had been entirely le.gal, there would have been scant ground- to recover damages. The testimony is entirely too general. It does not appear in what respect he has been damaged in his reputation. It was a matter of difference of opinion between the parties, and a failure to follow .the terms of an ordinance, such differences as may arise in matter of the execution of -a contract.
If we were to conclude that there was liability, we do not find that it was by the parish, but by the individuals who had gone be-jond the scope of their authority while officers of the parish.
As relates to profits (another claim of '.plaintiff), which plaintiff would have made had the cash been found in accordance with the contract, we will state that, had the contract been fdund legal, the amount claimed for this item is speculative and problematical. Beyond general asseverations, there is no evidence upon' the subject such as required to sustain a judgment. A demand for a round sum cannot be granted unless it is ■shown by reference to facts that it is reasonably certain that plaintiff would have realized the amount he claims.
This was not done.
The third and last item was for work performed and materials furnished, including $1,000, which plaintiff has received on the contract.
We will state in the first place that the argument for the defendant brought up the subject of the new jail.
This is an independent contract and presents no issue before us to determine except as relates to the old material taken from the courthouse and used in building the jail. This was the property of the parish.
Of the material from the old courthouse, we have found items to the amount of $3,644. Also he must be charged with the $1,000 received by him. Amount allowed in recon-ventional demand, $4,644.
This plaintiff owes to the parish.
The movable property in the yard from the old courthouse remains the property of the defendant.
The law and the evidence being in favor of defendant and against plaintiff, the judgment of the district court is amended by reducing the amount allowed in the recónven-tional demand to $4,644, with interest on said amount as heretofore allowed on similar amount.
In all other respects, the judgment is affirmed.
The appellee to pay the costs of appeal.