Anderson v. Ripley County

• Decision Date: 23 March 1904
• Citation: 181 Mo. 46,80 S.W. 263
• Parties: ANDERSON v. RIPLEY COUNTY.
• Court: Missouri Supreme Court

80 S.W. 263

181 Mo. 46

ANDERSON v. RIPLEY COUNTY.

Supreme Court of Missouri, Division No. 2.

March 23, 1904.

COUNTIES — ERECTION OF PUBLIC BUILDING — CONTRACTS — EXPRESSING CONSIDERATION — NECESSITY OF ELECTION — CURRENT EXPENSES — RATIFICATION.

1. Under Rev. St. 1899, § 6759, providing that a contract by a county, including the consideration, shall be in writing, a contract for extra work in erection of a county building, amounting to a third of the original contract price for the building, should, equally with the original contract, state the consideration, and not leave the liability of the county to rest on an implied promise to pay the reasonable value.

2. Rev. St. 1899, § 1800, providing that if a claim against a county be for work done in good faith, under a contract with the county authorities, claimant, if he has fulfilled his contract, may recover the just value of the work, though such authorities, in making the contract, have not pursued the form or proceedings prescribed by law, has no application to a contract for extra work in erection of a public building, amounting to a third of the original contract for the building, where it fails to state the consideration as required by section 6759, but leaves the county's liability to rest on an implied promise to pay the reasonable value.

3. Under Rev. St. 1899, § 5172, requiring an election to authorize the incurring of the indebtedness, when it is necessary for a county to incur an indebtedness, to build a courthouse or jail, in excess of the total income and revenue of the county provided for the year, such indebtedness cannot be incurred, without such election, where the ordinary current expenses of the county for the year, as enumerated in sections 9273 and 9283, equal such income and revenue, though, if only the ordinary current expenses accrued at the date of the contract for the buildings be considered, enough remains from the revenue of the year to pay for the contracted work.

4. A contract of indebtedness by a county court being void, ratification thereof by it is ineffectual.

Appeal from Circuit Court, Ripley County; J. L. Fort, Judge.

Action by John M. Anderson against Ripley county. Judgment for defendant. Plaintiff appeals. Affirmed.

J. C. Sheppard, for appellant. Thos. F. Lane, for respondent.

FOX, J.

"This action arose out of an attempted modification of an original contract between appellant and respondent to build a courthouse and jail for Ripley county. Said original contract was dated October 10, 1898. The modification or new contract between appellant and respondent was dated May 5, 1899. Ripley county had not funds to erect the necessary and desired buildings provided for in the contract, and a proposition to bond the county in the sum of twenty thousand dollars to build said courthouse and jail was submitted to the voters thereof on the 30th day of July, 1898, and was duly carried. The bonds were sold, and the original contract between appellant and respondent county resulted as first above stated. The contract price of the courthouse and jail, which were included in one transaction, was $18,060. Prior to the acceptance of the buildings, and prior to the order of the county court making an entry of record agreeing upon the value of extra work claimed by appellant, the county court had paid appellant $795 on such extra work, and this amount, together with the amount afterward found and agreed upon by the county court to be due for extra work, made a total of $4,500.50 in excess of the contract, and $2,256.50 in excess of the amount authorized by the people at the special election held for that purpose. The total revenue of Ripley county levied for the year 1899, from all sources, was $15,223.08. The total amount of warrants drawn to pay the current and ordinary running expenses for the year 1899 was $20,703.11. No warrant has ever been issued for the amount sued on in this case."

The fourth paragraph of the contract entered into by appellant and respondent for the building of their courthouse provides as follows:

"Fourth. The said party of the first part may make all alterations by changing, omitting from or adding to the work it shall deem proper, and the superintendent shall advise, without in any manner impairing the validity and virtue hereof; and in such case the said superintendent shall value and appraise such alterations and add to and deduct from the amount herein agreed to be paid to the party of the second part, the excess or deficiency occasioned by such alterations or additions before being made shall be stated in writing to the said party of the second part by the said superintendent with his appraisement thereof indorsed thereon, which said appraisement shall be binding on all parties hereto, which said appraisement shall be fair and reasonable."

On May 5, 1899, the following contract for extra work was made by the county court of Ripley county and the appellant:

"May Regular Term, 1899, and the 6th day of May, 1899. Now at this time the court enters into contract with J. M. Anderson to do certain extra work on courthouse and jail, which said contract is in words and figures as follows:

"`Doniphan, Mo., May 5th, 1899. It is hereby agreed by and between the county court of Ripley county, as party of the first part, and John M. Anderson, of Emporia, Kansas, as party of the second part, that the following changes have been agreed upon: That the foundation wall of jail below concrete and excavation of the trenches is an extra, also all stone walls within and outside of foundation walls of courthouse to be an extra below the concrete, also the excavation of the trenches for said walls and the filling in of the jail under concrete and all the stone walls of courthouse, both inside and outside, to be made two feet thick instead of eighteen inches thick and all inside and outside walls below ground to be laid in cement mortar and all the above mentioned changes is hereby recommended by me. Yours truly, Wm. F. Schrage, Architect and Superintendent Courthouse and Jail, Doniphan, Ripley County, Mo.'"

On the 15th of December, 1899, the county court of said county made the following order: "Now at this time the court accepts the new courthouse built by J. M. Anderson for Ripley county, and, on examination, the court finds the charges for extra work and material furnished on said courthouse by the said J. M. Anderson to be forty-five hundred and five dollars, and that seven hundred ninety-nine and 50/100 dollars have been paid on such extras, and that the original contract has been paid in full, and that a balance of thirty-seven hundred five and 50/100 dollars yet remains to the said J. M. Anderson for said extra work and material. It is further ordered by the court that the bond of said J. M. Anderson given Ripley county for the faithful performance of the contract to build said courthouse be returned to him."

At the close of all the evidence, plaintiff requested the court to give the following declarations of law: "It is admitted in this case that the people of Ripley county in the year 1898 voted on the proposition to erect in said county a courthouse and jail, and that said proposition was duly carried at an election duly held for that purpose, and an indebtedness was by said election authorized to the amount of twenty thousand dollars for that purpose, and that the plaintiff contracted with the county court of said county to erect said courthouse and jail for the sum of eighteen thousand and sixty dollars, and that the amount sued for in this case is for a part of the work done on said courthouse; and the court, sitting as a jury, declares the law to be that, if it finds and believes from the evidence in this case that said work herein sued for was performed under a contract with said county court, the said work received and accepted by said court, and the amount thereof adjusted and agreed upon between the said court and the plaintiff, and that the amount agreed upon was the balance due from said county to the plaintiff, which said amount was $3,705.50, and, at the time said contract for the work sued for was made, the county court of said county had not expended, including the amount herein sued for, the revenues of said county provided for the year 1899 to an amount in excess of the general county revenue provided for said year, including the revenues on hand from any previous years not then appropriated for any other purpose, and also that said court had not at that time — the time of entering into said contract for the work herein sued for — had not incurred liabilities in excess of the revenues provided for the erection of the courthouse and jail, then the finding should be for the plaintiff." The court refused this request, and, upon the submission of the cause, rendered judgment for defendant. From this judgment, plaintiff prosecutes his appeal, and the case is now before this court for review.

Opinion.

This appeal presents two vital repositions for our consideration: First. Does the contract disclosed by the record entitle plaintiff to recover? Second. Is the debt created by the contract in excess of the revenue provided for the year in which the debt was contracted?

It will be observed that at an election in Ripley county, Mo., bonds were authorized to be issued to the extent of $20,000 for the purpose of building a courthouse and jail. There was a contract entered into between plaintiff and the county for the erection of these buildings. The contract price agreed upon was $18,060. This original contract was dated October 10, 1898. On May 6th the following agreement was made:

"May Regular Term, 1899, and the 6th day of May, 1899. Now at this time the court enters into contract with J. M. Anderson to do certain extra work on the courthouse and jail, which said contract is in words and figures as follows:

"`Doniphan, Mo., May 5th, 1899. It is hereby agreed by and between the county court...