American-Lafrance, Inc. v. City of Philadelphia

• Citation: 183 Miss. 207,184 So. 620
• Decision Date: 28 November 1938
• Docket Number: 33280
• Court: United States State Supreme Court of Mississippi
• Parties: AMERICAN-LAFRANCE, INC., v. CITY OF PHILADELPHIA

184 So. 620

183 Miss. 207

AMERICAN-LAFRANCE, INC., v. CITY OF PHILADELPHIA

No. 33280

Supreme Court of Mississippi

November 28, 1938

(En Banc.)

1. MUNICIPAL CORPORATIONS.

An order reciting that municipal board after consideration of the need of better fire equipment ordered clerk to advertise for bids on a specified make of fire truck with pump attachments, and subsequent order reciting that after consideration of bids it was ordered that city purchase that brand of fire truck with pump attachments were insufficient to effectuate a valid sale.

2. MUNICIPAL CORPORATIONS.

Where there is no actual corruption, and transaction with city for purchase of machinery is within the objects authorized by law but contract is void for want of compliance with legal requirements in making thereof, alleged seller may recover the property as long as it is within reach of the processes of replevin or other appropriate action.

3. MUNICIPAL CORPORATIONS.

Where there is no actual corruption, and transaction involving alleged sale of machinery to city is within the objects authorized by law but contract is void for want of compliance with legal requirements in making thereof, alleged seller may recover a reasonable compensation for use of the machinery.

4. MUNICIPAL CORPORATIONS.

Unless a statute contains some express or implied restraint, a municipality has reasonable discretion in choice of means or methods for exercising powers given it by statute for a public purpose.

5. MUNICIPAL CORPORATIONS.

The alleged seller of fire truck and equipment to city was entitled to recover reasonable compensation for its use where contract of purchase was void for noncompliance with requirements in making thereof, notwithstanding alleged contract might be deemed an attempt to create an interest-bearing debt without authorization of electors at an election, since in absence of statutory prohibition city could be regarded as a lessee of the equipment, but city was entitled to credit on lease compensation for sums theretofore paid as purchase money (Code 1930, secs. 2391, 2428, 5978).

6. MUNICIPAL CORPORATIONS.

A statute giving a municipality broad power to purchase and hold real and personal property empowers the city to lease such property unless there is in the very nature of the use and control of the property an implied inhibition against a lease (Code 1930, sec. 2391).

HON. J D. GUYTON, Chancellor.

APPEAL from the chancery court of Neshoba county HON. J. D. GUYTON Chancellor.

Suit by American-LaFrance, etc., Inc., against the City of Philadelphia to foreclose a purchase-money lien against fire truck or for repossession thereof and for reasonable compensation for its use. Decree of dismissal, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

Appellee cannot avail itself of any want of demand for the return of the fire equipment prior to suit for the following reasons a. Until the suit was actually filed, appellee had not given notice of any claim that the sales contract was invalid, had not repudiated the purchase, nor itself offered to restore the property, but still held possession, declining to pay without assigning a reason. b. There was no express contract right to repossess without suit under the contract for mere default in payment of purchase price. True, the appellant had the right, assuming the contract were valid, to institute a replevin suit, or to sue for the debt, or to proceed in equity to foreclose the chattel mortgage, which in legal effect was the nature of that contract. The contract not having been repudiated, appellant had the right to proceed to foreclose its lien, as appellee retained possession, but refused to pay, and to do so without futher demand. Chancery Court has jurisdiction to foreclose liens.

Ross v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Alexander v. Houston, 31 So. 211.

Contracts such as Exhibit A are conditional sales contracts with reservation of title as security for price. As such, the contract here involved is a chattel mortgage.

Hunter v. Crook, 93 Miss. 810, 47 So. 431; Rodgers v. Whitehead, 89 So. 779, 127 Miss. 21; Rederich v. Wolfe, 68 Miss. 500, 9 So. 350; Duke v. Shackleford, 56 Miss. 552; Bankston v. Hill, 134 Miss. 288, 98 So. 689; Federal Credit Co. v. Boleware, 142 So. 1.

The debt being past due and payment thereof refused, the right to foreclosure had accrued. No demand was necessary.

11 C. J. 720, sec. 532; Dearing v. Ford, 13 S. & M. 269; Sackler v. Slade, 148 Miss. 575, 114 So. 396; Newell v. Newell, 34 Miss. 385; Devane Chevrolet Co. v. Montgomery Ward, 165. Miss. 185.

Assuming, for the purpose of the argument, that it can be said from the pleadings, the allegations of which are admitted by the demurrer, that there was neither any express or implied contract binding upon the city, with reference to the purchase of the fire equipment, so that no recovery could be had for the balance of the purchase price of the equipment nor for the fair value of the equipment itself, still, under the allegations of the bill of complaint, the city received, retained and used for its benefit, for six or seven years, the property of the appellant, in the discharge of a function of city government, which it was fully authorized to perform, and in the performance of which it was fully authorized to acquire, and use in such manner, the property here involved, so that the city can and should be held to do justice with reference to such property, under the circumstances of this case, and should restore it with fair and just compensation for its use during the period that the city retained it and put it to beneficial use.

American-LaFrance & Foamite Industries, Inc., v. Arlington County (Va.), 192 S.E. 758; Johnson County Savings Bank v. Creston, 84 A.L.R. 926.; Mt. Jackson v. Nelson, 149 S.E. 632; Ensley v. Hollingsworth, 54 So. 95, Ann. Cas. 1912D 652; Travelers Ins. Co. v. Johnson City, 99 F. 663; Hitchcock v. Galveston, 24 L.Ed. 659; Chapman v. County of Douglass, 27 L.Ed. 378; Floydada v. American La-France & Foamite Industries, Inc., 87 F.2d 820; Independent Paving Co. v. City of Bay St. Louis, 74 F.2d 961; Cameron Water Improvement District v. De La Vergne Engine Co., 93 F.2d 373.

There can be no doubt as to the lawfulness of the object of the city in acquiring and using the fire equipment here involved. The purpose was clearly a public one. The public received the benefit of it. There was nothing morally wrong in the city acquiring and using the property. In fact, it was the duty of the city to acquire like property and use it for the very purpose for which it did use it.

Sections 2391, 2393, 2406 and 2428, Code of 1930.

It is clear that the city had express authority to provide for the prevention and extinguishment of fires and to organize, establish, operate and maintain fire and hook and ladder companies, and to provide and maintain a fire department and system.

If the city did not make an enforceable contract with reference to the purchase of the property it might have done so by pursuing the statutory method and manner of so contracting. Consequently, even though the city may not be held liable as upon an express contract, nor even upon an implied contract, to pay the price of the particular property and to keep it, it is still liable to deal with the property which came into its possession in the manner herein set forth consistently with right and justice, which clearly means that it is the duty of the city to return it with fair compensation for the beneficial use to which it put the property.

Church v. Vicksburg, 50 Miss. 605; Gulfport Mfg. Co. v. Town of Bond, 49 So. 260, 95 Miss. 723; Sherman v. City of Grenada, 51 Miss. 186; Board of Education v. City of Aberdeen, 56 Miss. 518; Edwards House Co. v. City of Jackson, 103 So. 428, 138 Miss. 644; Crump v. Bd. of Suprs., Colfax Co., 52 Miss. 107.

The City of Philadelphia unquestionably had the power to contract for this equipment and to use it to prevent and extinguish fires. That being true, if it had come into possession of the property without any contract whatever and used it for six years for legitimate purposes within the powers of the city, it would unquestionably be required to return the property with fair and reasonable compensation for its use.

The doctrine of equitable estoppel is recognized in Mississippi and applies to municipalities.

Jackson v. Merchants Bank & Trust Co., 122 Miss. 537, 73 So. 573; City of Mobile v. Sutherland, 129 Fed. (Fifth Circuit); Glade County, Fla. v. Detroit Fidelity & Surety Co., 57 F.2d 449; Lumbermen's Trust Co. v. Towne, 50 F.2d 219; District of Columbia v. Cahill, 54 F.2d 453.

There is a distinction between a contract implied in fact and one implied in law. It has been well said: "A quasi contractual obligation is imposed by law for the purpose of bringing about justice without regard to the intention of the parties."

1 Williston on Contracts, sec. 3; 13 C. J. 244; Dillon on Municipal Corporations; Argenti v. San Francisco, 16 Cal. 255.

We think the fundamental basis of the doctrine is more accurately and aptly stated in the decisions of the Supreme Court of the United States and M. E. Church v. Vicksburg, supra, and to be just this: That a municipal corporation, like any other individual or private corporation, if it receives the money or property of another under such circumstances that the general law independent of express contract imposes the obligation upon the city to do justice with respect to same, can and should in equity be required to do what is right, just and fair with reference thereto.

Merchants Bank & Trust Co. v. Scott County, 145 So. 908, 165 Miss. 91; ...