Burger v. City of Springfield

• Decision Date: 13 April 1959
• Docket Number: No. 47020,No. 1,47020,1
• Citation: 323 S.W.2d 777
• Parties: O. L. BURGER, Appellant, v. CITY OF SPRINGFIELD, Missouri, a municipal corporation, Respondent
• Court: Missouri Supreme Court

Page 777

323 S.W.2d 777

O. L. BURGER, Appellant, v. CITY OF SPRINGFIELD, Missouri, a municipal corporation, Respondent.

No. 47020.

Supreme Court of Missouri, Division No. 1.

April 13, 1959.

Motion to Modify Judgment Denied May 11, 1959.

Horace S. Haseltine, Harold T. Lincoln, Lincoln, Lincoln, Haseltine, Forehand & Springer, Springfield, Sam R. Gardner, Gardner & Gardner, Monett, for appellant.

John B. Newberry, Springfield, for respondent.

DALTON, Judge.

This is an action by which plaintiff seeks to recover $100,000 for personal services rendered the City of Springfield as a negotiator in the purchase of the property of the Springfield City Water Company, a public utility. The amended petition contains two counts in which different theories of recovery are set forth, as hereinafter stated. The trial court sustained a motion to dismiss both counts and plaintiff appealed.

The facts alleged as a basis for the plaintiff's claim are substantially as follows: On June 25, 1956, the City Council of the City of Springfield, Missouri, duly passed and the Mayor signed a resolution entitled: 'A Resolution--To authorize the Water Works Committee of the Council to employ a representative of the city to conduct negotiations for the purchase of the Water Works.' The resolution provided: 'Whereas, it is desirable that the City of Springfield, Missouri, be represented by a suitable person in negotiating the proposed purchase of the Water works; Now Therefore, Be It Resolved by The Council of the City of Springfield, Missouri as follows:

'That the Water Works Committee of the Council be and it is hereby authorized to employ a suitable person to represent the City in such negotiations and a reasonable compensation for services and expenses to be fixed by the Council upon the completion of his services.' (Italics ours.)

Thereafter, on the 26th day of June, 1956, the then-Mayor of the City of Springfield, Missouri, Warren M. Turner, whom the plaintiff alleged to be a member of the Joint Water Works Committee and acting as spokesman therefor, wrote to plaintiff at his place of business in Dallas, Texas, two letters, both of which informed plaintiff that he had been selected to represent the City in its negotiations with the Springfield City Water Company, a private water utility, for the purchase of the utility's property. A copy of the City Council's resolution was enclosed. In one letter it was stated: 'The Water Works Committee of the Springfield City Council has, in accordance with the authority granted in a resolution adopted last night (a copy of which is enclosed), unanimously appointed you to represent the City in negotiations with the Springfield City Water Company for the purchase of the water works by the City.' In the other letter the then-Mayor stated, 'It is our understanding that the City will expect to pay you fair compensation for your services in the matter, the compensation to be agreed upon between you and the City Council when the matter is completed. If this is not your understanding of the agreement, please let me know at once. This is the understanding Mr. Wann had after his second conversation with you; that you could not fix a fee in advance, but that you would rely on the fairness of the Council in agreeing upon a fair and reasonable fee.' The letter closed with this statement: 'I am enclosing a formal notification of your appointment, also, a copy of the resolution.'

On June 28, 1956, plaintiff replied by letter, in part, as follows: 'I wish to acknowledge your letter of June 26 stating that the Water Works Committee of the Springfield City Council had appointed me to represent the City of Springfield in negotiations with the Springfield City Water Company for the purchase of the water works by the city. I hereby advise you of my acceptance as negotiator on the basis and terms as set out in your letter of June 26 * * *.'

Thereafter, the plaintiff entered into negotiations with the Springfield City Water Company regarding the possible purchase of the utility by the City of Springfield, Missouri. On December 30, 1957, the entire properties of the private utility were purchased by the City. Demand was thereafter made by plaintiff that he be paid for services rendered in the purchase negotiations. Payment was refused on the ground that defendant City could not legally make such payment.

Concerning the value of plaintiff's services, the amended petition alleged that defendant had started negotiations for the purchase of the water works from the Springfield City Water Company in 1953 and, after three years of fruitless negotiations, the City passed the resolution under which plaintiff was employed; that plaintiff, after having accepted the employment according to the terms of the mentioned resolution, proceeded to negotiate for the defendant City over a period of some seven months; that at the time of plaintiff's employment, the water company was asking $23,900,000 for the plant; that by October, 1957, the asking price was $20,000,000; that plaintiff was authorized to pay $19,500,000, but finally negotiated the purchase for $19,000,000; that, thereafter, the City voted bonds for the purchase, sold the bonds and did purchase the water plant under the contract negotiated by the plaintiff; and that a fund from the bond money was earmarked for the payment of plaintiff, but no payment was made.

The first petition was in one count, but after a motion to dismiss was sustained, plaintiff filed an amended petition in two counts. It is apparent that the first count of the amended petition is based upon the theory of a written contract between plaintiff and defendant which had been fully complied with by plaintiff, but breached by defendant by its refusal to pay plaintiff any compensation for his services. By this count plaintiff seeks to recover $100,000, which is alleged to be a fair and reasonable compensation for his services as agreed upon in the contract.

In the second count plaintiff alleged facts which he now claims justify recovery of $100,000 for the mentioned services on either of two different theories, to wit: (1) that 'defendant was under a legally imposed duty to provide for a water supply for its inhabitants; and, since plaintiff was employed by defendant to assist defendant in performing this duty, defendant has a legal obligation to pay for the reasonable value of plaintiff's services'; and (2) that 'since plaintiff was employed by a legally enacted resolution of defendant, there is a legal obligation on defendant to pay plaintiff the reasonable value of his services by reason of the Resolution.' Appellant says that 'a valid contract has nothing whatsoever to do with plaintiff's recovery under either of these theories.'

The motion to dismiss the two counts of the amended petition was based upon the theory that neither count stated facts upon which relief could be granted, because of the provisions of Section 432.070 RSMo 1949, V.A.M.S. As to the first count, the motion to dismiss stated: '* * * the facts set out in Count I of plaintiff's amended petition clearly shows that the consideration to be paid by defendant under the terms of the alleged contract was not set out; that the failure to set out the consideration to be paid plaintiff makes the alleged contract void ab initio; and that Section 432.070, supra, prohibits the defendant from paying plaintiff any amount under the facts plead and relied upon by plaintiff.' As to the second count, the motion stated: '* * * Count II of plaintiff's amended petition does not allege any contract in writing with the plaintiff; and * * * Count II of plaintiff's amended petition may be construed as relying on the allegations contained in Count I of plaintiff's amended petition; and the reason set out for Count I of plaintiff's amended petition likewise apply to Count II of plaintiff's amended petition.'

Respondent's position on this appeal is well stated in its brief, as follows: 'It is the position of the respondent, insofar as Count I of appellant's petition is concerned, that if it be conceded that the resolution of the City Council and the letters written pursuant thereto, constitute a contract in writing, dated when made, and subscribed by the parties thereto, that said agreement must fail, and that it is void and unenforceable, because it fails to set out the consideration to be paid to appellant for rendering the services contemplated by the contract. * * * clearly the facts, as set out in appellant's petition, which must be taken as true on the motion to dismiss, show that this transaction contravenes the direct mandatory requirements of Section 432.070. It left the amount to be paid to appellant undecided until the appellant had performed his services.' Respondent further says that 'the alleged contract by the appellant and respondent in this case violates the statutory requirement and is, therefore, ultra vires, void and unenforceable'; that 'the City of Springfield, Missouri, adopted the only legal position possible as a municipality in its refusal to pay appellant * * * for the services rendered in the purchase of the Springfield City Water Company'; and that it is 'impossible for respondent city, itself a subdivision of the government and a creature of the law, to recognize moral obligations in the face of positive statutory declarations.'

As to Count II, respondent says the facts in the instant case fail to bring appellant's claim within any factual situation not covered by Section 432.070. Respondent further insists that on the facts here, Section 432.070 RSMo 1949, V.A.M.S., is a complete bar to recovery on either count of the amended petition. In view of the conclusion we have reached we consider it unnecessary to further consider the second count.

Section 432.070 RSMo 1949, V.A.M.S., upon which the respondent relies is as follows: 'No county, city * * * or other municipal corporation shall make any contract, unless the same...