Bouton v. the Bd. of Supervisors of Mcdonough County.

• Decision Date: 31 January 1877
• Citation: 1877 WL 9396,84 Ill. 384
• Parties: NATHANIEL S. BOUTON et al.v.THE BOARD OF SUPERVISORS OF MCDONOUGH COUNTY.
• Court: Illinois Supreme Court

84 Ill. 384

1877 WL 9396 (Ill.)

NATHANIEL S. BOUTON et al.

v.THE BOARD OF SUPERVISORS OF MCDONOUGH COUNTY.

Supreme Court of Illinois.

January Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McDonough county; the Hon. C. L. HIGBEE, Judge, presiding.

Messrs. WAITE & CLARKE, for the appellant.

Messrs. JUDD & WHITEHOUSE, for the appellee.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

This was a bill in chancery, filed by N. S. Bouton & Co., the appellants, against the board of supervisors of McDonough county, to enforce an equitable assignment, or a sub-contractor's lien. Bouton & Co. were sub-contractors under A. Wallbaum & Co., who were contractors with the county for the building of a court house at Macomb, in said county. For that purpose, on February 11, 1869, Wallbaum & Co. made with said board, on behalf of the county, an agreement in writing for the erection of the court house, to be completed on or before August 11, 1870, for the price of $129,000, to be paid to them as the work should proceed, as follows: “Eighty-five cents on each dollar's worth of work or materials furnished and in the building, the money to be paid in monthly estimates on the first day of each month, upon the certificate of the superintendents.” E. E. Myers was named as the architect, and the work was to be done according to plans, specifications, etc., furnished by him. Myers and S. G. Reid were, by the contract, made the superintendents of the building. Wallbaum & Co. performed the contract, but not within the time limited, with the exception of some $3657, which Ried, the superintendent, under the direction of the board of supervisors, paid out to fully complete the court house.

In January, 1870, N. S. Bouton & Co. made a sub-contract with Wallbaum & Co., to furnish certain materials and work, for about $25,794, which was performed, and on which they were paid only $8059, leaving $17,734 still due, which they here seek to recover from the county. The court below, upon final hearing on proofs, dismissed the bill, and the complainants appealed to this court.

The right of recovery is based on three grounds:

First, that of an equitable assignment made by Wallbaum & Co. to Bouton & Co., and accepted of or assented to by the county, through its superintendents, on October 21, 1870.

Second, that of an order or estimate for $8196, drawn or assigned by Wallbaum & Co., in favor of Bouton & Co., and accepted or assented to by the county, through its superintendents, about January 1, 1871.

And, third, that of a sub-contractors' lien in favor of Bouton & Co.

As respects the first ground, it appears that in August. 1870, Bouton & Co., becoming dissatisfied as to payments, examined into the affairs of Wallbaum, and found that he had no partner in the business, and that he was insolvent and in bankruptcy; and on the 12th of October, 1870, they caused a written notice to be served on the treasurer of the county of their being sub-contractors, and that they should, under the lien law, hold the county responsible for the payment of any sum due them. Myers and Reid, the superintendents, had knowledge of the notice. On October 21, 1870, a meeting took place between N. S. Bouton, Wallbaum, Reid and Myers, and an arrangement was had; what it was, the testimony is conflicting; but we will assume Bouton's version of it to be the correct one. He says that he declined to do any more work unless he could be paid, and an arrangement made by which payment should come to him directly; that thereupon an arrangement was made that Reid and Myers should give Bouton & Co. monthly estimates directly, for their work, and the payments were to be made by the county directly to them; that they were to pay Bouton & Co. only eighty-five per cent, at the time, of the amount of their bills, and they were to retain the fifteen per cent, provided for in their contract with Wallbaum, and that the fifteen per cent was to be retained until the completion of their work, when it was to be paid to them; that he consented, on this basis, to go on with the remainder of the work. After this arrangement, Bouton & Co. furnished and put into the building from $15,000 to $18,000 of work and material. Had this arrangement been carried out strictly, Bouton & Co. would have been paid. If the county itself had made this agreement a very strong case of equity would be exhibited. It is presented in argument, all through, as though the county was a party to the arrangement, through its superintendents. Therein consists the defect.

We consider the arrangement as one which it was not within the scope of the authority of Reid and Myers to make, and that it was not binding upon the county. The contract for building the court house was not made by them, but by the board of supervisors of McDonough county. Reid and Myers were but superintendents of the construction of the building, to see that it was built according to the contract which had been made by the board of supervisors. All the authority given by the contract to Myers and Reid, the superintendents, was to accept or reject any materials or work furnished, and to issue the certificates for the work and materials done and furnished, and upon such certificates, by the resolution of the board of supervisors, the county clerk was directed to issue court house orders, in favor of Wallbaum & Co., for such sums of money as they might be entitled to in accordance with the terms of the contract. The board's resolution of appointment of Reid was, “as county agent to superintend the construction of the court house.”

Reid and Myers had nothing to do with the disbursement of funds, and it was not their's to say when, to whom, or how much, money should be paid. In respect, then, of this transaction of October 21, 1870, Reid and Myers were not the authorized agents of the county, or either of them, and they must be regarded as speaking for themselves, as to whatever they might do in virtue of the authority vested in them. They did not speak for or bind the county.

It appears that, at the suggestion of Myers, Bouton & Co. made out an account of the amount due to them for work done up to January 1, 1871, which was $8,196; that upon it Wallbaum made the following indorsement:

“Messrs. E. E. MYERS and S. G. REID:

Gentlemen--If you find the work done by Messrs. N. S. Bouton & Co. to be done all right and satisfactory to both parties, you will please give him an order on the county treasurer for paying this bill.

A. WALLBAUM.”

That Myers indorsed upon it his approval; that on its presentation to Reid, he refused to indorse his approval, saying the board of supervisors had passed a resolution that no money should be paid to Wallbaum in excess of the eighty-five per cent of his contract, and that was about paid; that it was then ascertained what the balance of such eighty-five per cent was, and it was found to be $1019, leaving a balance of fifteen per cent of the contract price of $129,000, amounting to about $19,000. Bouton & Co. obtained from Wallbaum a separate order for the payment to them of this sum of $1019, which Reid subsequently paid to them, and this was all the payment ever made to them by the county.

There is a conflict in the testimony of Bouton and Reid as to what took place between them on the presentation of this estimate for $8196, on which was Wallbaum's indorsement as above. We will, as before, accept the testimony of Bouton in regard to it. He says that Reid figured up this balance of fifteen per cent, and assured him that there would be money enough to pay Bouton & Co. their bill when the work was done, and that it could not be paid out for any other purpose, and that he would pay all their account. He says he retained the estimate itself, at Reid's request, and that it was burned in the great fire in Chicago, of October, 1871. Bouton & Co. continued on to the completion of their contract, and must have done considerable work subsequent to this time, January 1, 1871.

The eighty-five per cent of the contract price was exhausted by the payment of the $1019 to Bouton & Co. at this time, in January. This sum is all that was then due under the contract of Wallbaum & Co., and the remainder, the reserved fifteen per cent, would not become due until the final completion of the contract. This fifteen per cent was so reserved as security to the county for the completion of the court house, and in order that the county might use the amount to complete the work if Wallbaum & Co. failed to comply with their contract. Certainly, it is not to be supposed that Myers and Reid had any authority, by the arrangement of October 21, 1870, to encroach upon this reserve of fifteen per cent, and divert it, in whole or in part, to the use of Bouton & Co., and thus work such a material change in the contract, which provided for the holding of the whole of this reserve fund, by the county, intact, until the full completion of the contract. It would seem that the whole of this reserved fifteen per cent was needed, and that the county itself did really make use of the whole of it in the completion of the building. In March, 1871, three of the sub-contractors, who had sub-contracts under Wallbaum & Co. for doing portions of the work, became dissatisfied, on account of the uncertainty of getting their pay from Wallbaum & Co., and, to some extent, had already quit their work, and were threatening to do so entirely, unless the county would secure their pay. In view of this, Wallbaum & Co., on March 13, 1871, drew three several orders on the board of supervisors, for the payment to Martin & Thomas, of the sum of $12,087; to B. F. Whitson & Co., $1500; to Ingraham & Argenbright, $2150, for work already done and to be done, which the board of supervisors, on the same day, in due form, accepted, one-half payable then and the other half when Wallbaum & Co. should complete their contract. These sub-contractors then went on and completed the work...