170 F. 812 | U.S. Circuit Court for the District of Western Missouri | 1909
This case has been submitted on the demurrers filed by the respective defendants, and also on motion to make the petition more specific. The petition is based upon a contract made between plaintiffs’ assignor and one A. H. Bell, as chief engineer, for construction of a drain in drainage district No. 1, Bates county, Mo. The ditch was divided into certain sections of different numbers for ■construction. The work was done by the plaintiffs, accepted and paid for by the county, except as to one division, about which this controversy arises.
The claim of the petition is that the character of the formation of the earth through which this portion of the ditch was to be constructed was materially different from that called for by the contract, and was not of such formation as the profiles furnished by the engineer called for; that, as disclosed by the profiles the work required by the contract was to be done by steam dredge, could not be done therewith by reason of the undisclosed formation, rock, etc.; that this fact was brought by petition of the contractor to the attention of the county ■court, and that the county court thereupon, in effect, directed the plaintiffs to proceed with the coriipletion of said work, without prejudice to either party as to whether the additional and more expensive work to excavate and of construction came within the terms of the original contract; that the plaintiffs thereupon proceeded to perform and complete the said work at an additional expense of construction, for which the county refused to pay, and to recover which this suit is brought.
The suit is brought against both the county and drainage district No. 1 of Bates county. The separate demurrers of the defendants raises the question, first, of a misjoinder of parties defendant. Without entering into any detailed discussion, I am of opinion that’ the demurrer is well taken as to the defendant drainage district. The whole scope and tenor of the statute under which the contract was made indicate that it was made, in effect, under orders of the county court of Bates county, in pursuance of a power conferred upon it by the Legislature.
“If the court shall find in favor of making the improvement, the lands which, as hereinafter provided, it may be foundi will be thereby benefited, shall, for the purpose of this article, constitute a drainage district which shall be designated by number.”
This does not by any means, it seems to me, constitute such drainage district a quasi corporation of the county. It was nothing more than the designation of the district to be especially benefited by the construction ' of the draining ditch, for the purpose of ascertaining the property situate therein to be assessed to raise the necessary revenue to pay for the construction. The act, taken in its entirety, clearly enough indicates that the county court had entire control and supervision of the matter of authorizing the construction work, and was, in contemplation of the statute, the responsible party to contract therefor, and to and from whom the contractor must look for his pay. The county court on petition, provided for by the act, could issue bonds to be sold by the treasurer of the county, payable out of the assessments on the property of the district, and the fund arising therefrom was to meet the undertakings of the county to pay for the work. I am therefore unable to see that any judgment could be rendered, against the drainage district for the work done by the plaintiffs. The demurrer, therefore, on behalf of the drainage district is well taken.
• For the reasons above indicated, I think the county is the responsible contracting party for the work so done, as it required its approval and order to authorize it. It alone could direct the assessment upon the property of the district for the payment of the construction. It alone could order the bonds to be issued and sold for raising the necessary revenue for the payment; and, as the petition alleges that bonds were so issued and sold, the proceeds of which are in the hands of the county" treasurer, the county court is the only authority to direct the issue of the warrant on the treasurer for. payment of the work when completed. If it fail to issue such warrant, as the petition alleges, the remedy for the relief of the contractor must be against it. Whether or not the judgment, if obtained, should go against the county in personam, or whether the prayer of the petition should be, on the finding of the issues for the plaintiff, that the county court be required to issue and deliver the warrant on the treasurer for the satisfaction of the judg-ement, may be an interesting question in the determination of the case, 'if it appear that the proceeds of the bonds in the hands of the county treasurer are sufficient' to satisfy the demand. It is sufficient here for the court to say that, if it should turn out to be the proper remedy, the prayer of the petition could be amended accordingly.
It is urged that the contract in question does not purport to have been made with the county of Bates, eo nomine, but with one A. H. Bell, as chief engineer of said drainage district. But it appears from further allegations of the petition that after the engineer had made survey of the district, and submitted the same to the county court, with maps and profiles, and a complete plan for draining and reclaiming the
Looking at the provisions of the statute, under which this whole transaction was had, this engineer was nothing more than the agent or instrument of the county for making this contract; and as it sufficiently appears from the allegations of the petition, taken as a whole, that the county court recognized and acted upon this contract, paid for the work done thereunder, except for that portion herein in controversy, it does seem to me that, giving 'effect to substance rather than mere form, it sufficiently appears that the contract was made with the county for the work, to be paid -for in the manner aforesaid.
The only other objection raised by the demurrer of any importance is that the action is based upon a specific contract for the completion of the entire work, and that the petition discloses oh its face that the contract was not performed in full by the contractor, and therefore there can be no recovery. It may be conceded to this contention that, where the action is predicated of a specific contract, the plaintiff, in order to recover, must aver and prove a performance thereof'by him. No recovery can be had upon such petition for a quantum meruit. But that is not all of the petition in this case. It charges and discloses that, as to that part of the construction work in question, the plaintiffs were not required, by a correct construction of the contract, to perform by reason of the matters hereinbefore stated; and that thereupon, when the matter was brought by the plaintiffs to the attention of the county court, the parties entered into a new convention, whereby it was agreed that the plaintiffs should proceed to finish the remaining work, without prejudice to the county to pay the additional expense of the remaining construction, if the same should be held to come within the terms of the original contract; the clear implication being, from the allegations of the petition and the order of the county court, that, if such additional cost of construction was not within the provisions of the original contract, the county court would see to it that the-plaintiffs should be paid therefor. This, in my.opinion, is the essence of the controversy as disclosed on the face of the petition. My conclusion, therefore, is, that the demurrer as to Bates county should be overruled, and the parties be put to trial; and when all of the contracts are before the court, and the facts are all developed, the court will be in better position to determine the rights of the parties.
While the petition may be somewhat inartificially drawn, the detailed statement of facts is reasonably sufficient to advise the defendant of what it is called into court to try. This is sufficient under the practice , act of the state.
