Bixler v. Special Road Dist. No. 1, Newton County

• Decision Date: 19 November 1941
• Citation: 156 S.W.2d 950,236 Mo.App. 336
• Parties: N. A. BIXLER, RESPONDENT, v. SPECIAL ROAD DISTRICT NO. 1, NEWTON COUNTY, MISSOURI, A CORPORATION, W. H. BIRKS, WILLIAM POORE AND ELMER EXELTON, APPELLANTS
• Court: Missouri Court of Appeals

156 S.W.2d 950

236 Mo.App. 336

N. A. BIXLER, RESPONDENT, v. SPECIAL ROAD DISTRICT NO. 1, NEWTON COUNTY, MISSOURI, A CORPORATION, W. H. BIRKS, WILLIAM POORE AND ELMER EXELTON, APPELLANTS

Court of Appeals of Missouri, Springfield

November 19, 1941

Rehearing Denied December 17, 1941.

Appeal from the Circuit Court of Lawrence County.--Hon. Emory E Smith, Judge.

AFFIRMED.

Judgment affirmed.

Gardner & Gardner for appellants.

(1) (a) Section 3349, R. S. 1939, requires that the contract including the consideration, between plaintiff and defendant district, to be valid and enforceable, must have been in writing, dated when made and subscribed by the parties. This statute was designed for the protection of the taxpayers and, since its enactment, no recovery has been permitted against any municipality named therein upon a contract, unless such contract conforms to the requirements of this statute. Hawkins et al. v. Cox et al., 334 Mo. 640, 66 S.W.2d 539. (b) This statute covers contracts for labor as well as material and supplies. Air Co. v. Fulton, 166 Mo.App. 11, 148 S.W. 422; Likes v. City of Rolla, 184 Mo.App. 296, 167 S.W. 645. (c) No recovery can be had upon quantum meruit. Nolan v. School District (Mo. App.), 300 S.W. 523. (2) Persons dealing with municipalities must know at their peril that officers are not general agents, and that their contracts with municipalities must conform to the statute. Layne-Western Co. v. Buchanan County, 85 F.2d 343; Lamar Township v. Lamar, 261 Mo. 171, 169 S.W. 12; Morrow v. Surber, 97 Mo. 155, 11 S.W. 48. (3) (a) Oral testimony as to the agreement and understanding between the plaintiff and the district was incompetent, as municipalities can speak only through their records. Thompson v. City of Malden (Mo. App.), 118 S.W.2d 1059; Carter v. Reynolds County, 315 Mo. 1233, 288 S.W. 48; Pugh v. School District, 114 Mo.App. 688, 91 S.W. 471. (b) Section 8647, R. S. 1939, requires the clerk of special road districts to keep full and accurate records of the proceedings of the board. This statute is mandatory. City of Brunswick v. Scott, 219 Mo.App. 45, 275 S.W. 994; 43 C. J. 496, 513. (4) Plaintiff's Exhibits 1, 2, 3 and 4 do not meet the requirements of the statute requiring all contracts to be in writing. Carter v. Reynolds County, supra; Carter-Waters Corporation v. Buchanan County, 129 S.W.2d 914. (5) Plaintiff's evidence fails to prove an account stated. There is no evidence that Mustain had any authority to represent the district in striking a balance with the plaintiff. Having declared upon an account stated, plaintiff cannot recover upon any other theory. Woodson v. Leo-Greenwald Vinegar Co., 220 Mo.App. 831, 272 S.W. 1084 (certiorari quashed 287 S.W. 626). (6) A stated account gives rise to a new cause of action between the parties (Barr v. Lake, 147 Mo.App. 252, 126 S.W. 755), and no account stated can be had with a municipality mentioned in the statute, because that statute requires all enforceable contracts to be made upon a consideration wholly to be performed or executed subsequent to the making of the contract. Section 3349, R. S. 1939; Air Co. v. Fulton, supra; Likes v. City of Rolla, supra.

L. D. Rice and James E. Sater for respondent.

The appellant has failed to discriminate between the mandatory duties prescribed by the statute and the necessary expenses incident to performing such duties, and the transacting of the discretionary business of the district. The first is the fixed business of the district, and the county or the district is, under the statute, liable for the expense of performing the duties so required. Sec. 8682, R. S. 1939; Hardwicke v. Wymore, 208 Mo.App. 420, 235 S.W. 171; Buchanan v. Rawls County, 238 Mo. 10, 222 S.W. 1002; Harkreader v. Vernon County, 216 Mo. 696; Kansas City Sanitary Co. v. Laclede County (Mo.), 296 S.W. 395.

FULBRIGHT, J. Blair, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.

For convenience respondent will be referred to as plaintiff and appellants as defendants.

This is an action in two counts instituted in the Newton County Circuit Court, wherein plaintiff seeks to recover of defendants the sum of $ 705.10, for labor performed in repairing the roads within the jurisdiction of the defendant special road district No. One. Upon application of plaintiff the venue was changed from Newton County to the Circuit Court of Lawrence County. The cause was tried at the September Term, 1940, thereof, before the court, a jury being waived, and resulted in a finding of the issues for defendants on the first count and for the plaintiff in the sum of $ 705.10 on the second count and judgment rendered accordingly. From the judgment on the second count defendants have duly appealed to this court.

Since judgment was for defendants on the first count and there is no appeal therefrom, it requires no consideration here.

The second count of the petition, among other things, alleged in substance that plaintiff was hired by defendant road district, a corporation (the individual defendants being its present commissioners), at 30c per hour for himself and $ 1.00 per hour for his truck, and that at such wage the total amount of work done amounted to $ 2,141.23; that plaintiff had been paid $ 1,436.07 leaving a balance due of $ 705.10, for which he prayed judgment.

Defendants' answer denied under oath that they were indebted to the plaintiff in any sum whatsoever.

The evidence on the part of the plaintiff tended to show that defendant special road district No. 1 was duly organized in Newton County under what is now Section 8673, R. S. Mo. 1939, and that in the performance of the mandatory duty of the board, as provided under Section 8682, R. S. Mo., 1939, it employed the plaintiff to perform certain labor in carrying out its duty to keep the roads, within its jurisdiction, in repair; that pursuant to a purported resolution previously adopted by the board, plaintiff was hired, his compensation fixed and thereafter he performed the labor for which he now seeks compensation.

There seems to be no contention on the part of the defendants that plaintiff did not perform the services testified to; that the charges made therefor are not reasonable; that his services were not satisfactory, or that he had been paid therefor. But they contend that under the provisions of Section 3349, R. S. Mo. 1939 (Mo. Stat. Ann., Sec. 2962, p. 1827), all contracts of every kind and character, entered into with such special road district, in order to be enforceable, must be in writing; that, therefore, since there was no written contract between plaintiff and defendants, plaintiff cannot recover.

At the threshold we are confronted with plaintiff's motion to dismiss the appeal "for the reason that appellant's abstract is in violation of rule 15 of this court" in that the evidence of the witnesses is not stated in narrative form. We have examined the record before us with care and while there may be some ground for complaint we do not feel that there is such a violation of rule 15 as to authorize a summary disposal of the case. The motion to dismiss is accordingly overruled.

Defendants' Assignment of Errors is as follows:

"1. The court erred in overruling defendants' demurrer offered at the close of plaintiff's case.

"2. The court erred in overruling defendants' demurrer offered at the close of all the evidence.

"3. The court erred in admitting parole evidence as to the contract and agreement between plaintiff and the district, and erred in admitting Exhibit 2 and in permitting witness Mustain to testify as to what said exhibit showed.

"4. The court erred in admitting in evidence Exhibits 1, 2, 3 and 4.

"5. The court erred in giving declarations of law numbered 1, 2, 3 and 4 on behalf of plaintiff and erred in refusing declaration of law lettered A offered by defendants.

"6. The court erred in holding that the provisions of Section 3349, Revised Statutes, 1939, had no application to plaintiff's contract with the district and to the facts of this case, and in holding that it was not necessary to plaintiff's recovery for him to have had a contract with the district as required by said section.

"7. The court erred in holding under the evidence that an account stated was had by plaintiff and defendants.

In offering their demurrer the rule is so well settled as to require no citations that defendants admit the truthfulness of all evidence favorable to plaintiff and all reasonable favorable inferences that may be drawn therefrom and that the court, in passing upon the demurrer, shall accept as true such favorable evidence and inferences and disregard all evidence and inferences to the contrary. We have carefully examined the evidence as disclosed by the abstract and in passing upon the correctness of the trial court's ruling on the demurrer we are required to determine whether or not the contract upon which plaintiff relies falls within the provisions of Section 3349, supra. If within this statute, obviously plaintiff failed to make his case and cannot recover since the contract was not in writing.

Section 3349 applies to municipalities generally and its application in the instant case should be determined in the light of the pertinent provisions of Article 10, p. 2280, Vol. 2, R. S. Mo., 1939, under which the special road district in the instant case was organized.

Section 8682, supra, defines the powers and duties of the board of such special road districts in the following language:

"Said board shall have sole, exclusive and entire control and jurisdiction over all public highways within its district outside the corporate limits of any city or village therein, to construct, improve and repair such highways, and shall remove all obstructions from such...