Bd. of Cnty. Com'Rs of Mccurtain Cnty. v. W. Bank & Office Supply Co.

• Decision Date: 02 February 1926
• Docket Number: Case Number: 16240
• Citation: 122 Okla. 244,254 P. 741,1926 OK 81
• Court: Oklahoma Supreme Court
• Parties: BOARD OF COUNTY COM'RS OF McCURTAIN COUNTY v. WESTERN BANK & OFFICE SUPPLY CO.

1926 OK 81

254 P. 741

122 Okla. 244

BOARD OF COUNTY COM'RS OF McCURTAIN COUNTY v. WESTERN BANK & OFFICE SUPPLY CO.

Case Number: 16240

Supreme Court of Oklahoma

Decided: February 2, 1926

Syllabus

¶0 1. Appeal and Error--Discretion of Lower Court--Amendment of Pleading.

The allowance of amendments to pleadings during the progress of a trial rests within the sound judicial discretion of the trial court, and its action thereon will not be disturbed on appeal unless clear abuse of such discretion is shown.

2. Municipal Corporations--Illegal Contract of Sale--Right of Seller to Recover Property.

A municipality cannot acquire property under an invalid contract and plead the invalidity of the contract as a defense to an action thereon, and also retain the property where it is still in existence and in its possession. In such cases the courts will, in a proper proceeding, allow the seller of the property, if he has acted in good faith in the matter and without fraud, to recover possession. On Rehearing.

3. Counties--Contracts for Merchandise in Excess of Debt Limit--Seller's Sole Remedy Againts Contracting Officer's.

Section 8638, C. O. S. 1921, makes all contracts which fall within its inhibition void only as to the municipality. The provisions of the section become a part of each and every such contract as completely as if written therein. He who furnishes goods, wares, and merchandise or labor under contracts, express or implied, such as in said section referred to, has only one remedy in the courts and that is a suit against the officers. This remedy being exclusive, he cannot recover the goods delivered from the municipality. He parts with the title, both legal and equitable, knowing who must pay therefor; and at his own risk, he accepts the responsibility of the officers individually for his pay. If he does not see fit to pursue his remedy against them, he cannot recover either the value or the property from the municipality.

4. Same--Judgment for Recovery of Property Reversed.

On the record before this court, the judgment for the return of the property is reversed, with directions to dismiss plaintiff's petition.

Tom Finney and M. F. Hudson, for plaintiff in error.

Shirk, Danner & Mills, for defendant in error.

PINKHAM, C.

¶1 This action was instituted in the district court of McCurtain county by the Western Bank Supply Company, a corporation, as plaintiff, against the board of county commissioners of McCurtain county, defendant below. By order of this court the Western Bank & Office Supply Company, a corporation, was substituted as defendant in error for the Western Bank Supply Company. The case was tried before the court, a jury being waived by the parties, and the trial resulted in a verdict and judgment for the defendant in error. The parties will be referred to as in the trial court.

¶2 The material facts briefly stated are: That on March 29, 1920, the Western Bank Supply Company entered into an agreement in writing with the board of county commissioners of McCurtain county to furnish all partitions, bank counters, and screens, according to specifications attached thereto, and all material and labor necessary for the installation of the same in the departments of the county treasurer, county clerk, and county assessor in the courthouse in McCurtain county for the sum of $ 11,887. It was agreed therein that said sum was to be paid in five equal payments in the form of county warrants due on the 1st of July each year thereafter, the last payment to be due July 1, 1924. On the same date the said Western Bank Supply Company entered into a contract with the said board of county commissioners to furnish all items in a schedule attached to said contract, consisting of desks, chairs, filing cabinets, etc., to be used in said courthouse. This contract called for the sum of $ 10,196.45 to be paid in five county warrants due on the first of September of each year thereafter, the last warrant being payable September 1, 1924. All items called for by these two contracts were duly received and installed in the courthouse of McCurtain county, and a formal acceptance of same was made by the board of county commissioners to the Western Bank Supply Company. This acceptance was signed the 7th day of March, 1921, by each of the three county commissioners and was sworn to by the chairman of the board of county commissioners.

¶3 The plaintiff filed its petition December 29, 1921, setting up said contracts and acceptance thereof, alleging a breach in the terms of payment and praying for judgment against the defendant in the sum of $ 19,024.16, and interest. To this petition the defendant filed its unverified answer, denying generally and specifically the allegations of the petition and alleging that said contracts were void. Plaintiff replied, denying generally the allegations of the answer and filed an amended reply setting up matters in denial of defendant's answer. On May 1, 1924, the case was called for trial and the court granted the plaintiff permission at that time to file an amendment to its petition, which amendment alleges that the plaintiff entered into and fulfilled said contracts, relying on and believing them to be valid and legal, and that if the court should hold with the defendant's contention, that the contracts were and are void, the defendant well knew this at the time the contracts were entered into, and that the plaintiff should be entitled to the possession of said property; praying that if said contracts are void that it be decreed and ordered that the plaintiff have possession of said property and the reasonable rental value thereof. On the same date defendant filed its answer thereto, denying the allegations therein contained.

¶4 At the conclusion of the evidence the court found that the contracts were void because no funds were provided and no estimate was made to cover them, and because it sought to bind the future revenue of the county for future years, and is contrary to the statutes for that reason. The court also found that the evidence in the case shows that the Western Bank Supply Company, under a contract which the court holds is a void contract, furnished the courthouse practically from top to bottom. The court concluded that in equity and good conscience the plaintiff would be entitled to take back this property that has not been paid for; that the county has used the furniture for several years, and that outside of the small sum of $ 2,000, it has not invested anything in it. The court further held that the plaintiff cannot recover any rental, so that the county has had free use of the furniture and fixtures for some three or four years. The court further found there had been paid on the furniture something like $ 2,000, but that the county had used the furniture for three or four years and that therefore the county should not require the plaintiff to refund that money in view of the fact that the evidence shows that the rental would be far in excess of that amount. In the journal entry of judgment it was decreed that the contracts attempted to be entered into by and between the plaintiff and the defendant were void, being in violation of section 5809, C. S. 1921. It was further ordered and decreed that the plaintiff be given judgment for the possession of the property delivered to the defendant, particularly described in the judgment, except such as would substantially injure the building in removal. It was further ordered that the defendant deliver said property to the plaintiff, and that the plaintiff retain the $ 2,377.40 heretofore voluntarily paid it by defendant, and, further, that the plaintiff shall not have any rents or damages or be entitled to any further sums of money as against the defendant.

¶5 The defendant filed a motion for new trial, which motion was overruled and exceptions saved, and the cause comes regularly on the appeal of the defendant to this court by petition in error and case-made attached for review.

¶6 The first assignment of error presented and discussed in defendant's brief is that the court erred in permitting the plaintiff to file its amendment to the original petition over the objection and exceptions of the defendant. It will be observed that the original petition, declaring upon the two contracts entered into with the plaintiff by the board of county commissioners, alleged that there had been a breach in the terms of said contracts, and prayed for the amounts due thereunder. The defendant's answer set up the invalidity of these contracts. In its amendment to the petition, it is alleged that the plaintiff, relying on the validity of said contracts, had performed its obligation thereunder and had delivered the property called for under the contracts; that defendant had contended that said contracts were void, and that if in fact and in law they were void, defendant had misled and deceived the plaintiff, and therefore the defendant would be entitled to a return of the property thereunder, and praying that if said contracts be void, in that event the plaintiff have a decree for the possession of said property and for the reasonable rental thereon.

"The allowance of amendments to pleadings during the progress of a trial rests within the sound judicial discretion of the trial court, and its action thereon will not be disturbed on appeal unless clear abuse of such discretion is shown." Lamb v. Alexander, 83 Okla. 292, 201 P. 519.

¶7 Defendant cites a number of cases to the effect that, where a vendor having elected to treat a sale as absolute and title as having vested in the vendee, he cannot afterwards assert title and maintain replevin. Galbreath v. Mayo, 70 Okla. 252, 174 P. 517; D. M. Osborne & Co. v. Walther, 12 Okla. 20, 69 P. 953. The rule announced in these cases has, we think, no application here. In the instant case the defendant received the property under contracts which the court found were void, and which plaintiff alleged defendant knew were...