C. A. Burton Machinery Co. v. Ruth

• Decision Date: 25 May 1916
• Docket Number: No. 1802.,1802.
• Citation: 194 Mo. App. 194,186 S.W. 737
• Parties: C. A. BURTON MACHINERY CO. v. RUTH et al.
• Court: Missouri Court of Appeals

186 S.W. 737

194 Mo. App. 194

C. A. BURTON MACHINERY CO. v. RUTH et al.

No. 1802.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by the C. A. Burton Machinery Company against H. I. Ruth and others, wherein the action was revived against Effie M. Ruth, executrix of the estate of H. I. Ruth, after his death. From a judgment of dismissal, plaintiff appeals. Judgment reversed, and cause remanded.

Lew R. Thomason, of Poplar Bluff, for appellant. David W. Hill, Mozley & Green, and Sheppard & Sheppard, all of Poplar Bluff, for respondents.

ROBERTSON, P. J.

This action was originally against H. I. Ruth and the other defendants above named (except Effie M. Ruth). After the appeal was taken, he died, and the action was revived against the executrix, said Effie M. Ruth, his widow. The original defendants constituted the board of directors of school district No. 37 of Poplar Bluff, as it is alleged in the petition upon which plaintiff seeks to recover of them the value of certain material sold by it to insolvent contractors with said district. The liability is based on the theory that, since they failed to require any bond, as was their duty under section 1247, R. S. 1909, as amended by Laws 1911, pp. 106 and 107, they must respond in damages. Said section, as amended, reads as follows:

"It is hereby made the duty of all officials, boards, commissions or agents of the state, or of any county, city, town, township, school or road district in this state, in making contracts for public work of any kind to be performed for the state, county, town, township, school or road district, to require every contractor for such work to execute a bond to the state, county, city, town, township, school or road district, as the case may be, with good and sufficient sureties, and in an amount to be fixed by said officials, boards, commissions, commissioners or agents, and such bond, among other conditions, shall be conditioned for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise."

The defendants' demurrer to the petition was sustained, plaintiff refused to further plead, and the cause was dismissed. Plaintiff has appealed.

Poplar Bluff being a city of the third class, the school district of which defendants were directors is what is known as a "city school district" (section 10775, R. S. 1909), and consequently a body corporate (section 10864, R. S. 1909).

It is clear that since materialmen and laborers have no lien for their material furnished or work done for one contracting with a school district, or other similar corporation, the section of the statute which we have just quoted was intended to be a protection to the classes which would otherwise be protected by our mechanics' lien law. Jackson County ex rel. v. Freeborn Engineering & Construction Co., 174 Mo. App. 28, 35, 160 S. W. 274. But the question we must decide is whether or not there is any liability on the part of the directors of a school district to a materialman who has furnished supplies to a contractor, relying upon the belief that a bond has been taken as required by said section; the directors having made no effort to have such bond given.

"It is well-settled rule that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do the act, he is liable in damages at the suit of a person injured. In such cases a mistake as to his duty and an honest intention is no defense. Amy v. Supervisors, 11 Wall. 136, 20 L. Ed. 101; Insurance Co. v. Leland, 90 Mo. 177, 2 S. W. 431, 59 Am. Rep. 9; Mechem on Officers, § 664." Knox County v. Hunolt, 110 Mo. 67, 74, and 75, 19 S. W. 628; Steadley v. Stuckey, 113 Mo. App. 582, 585, 87 S. W. 1014; State ex rel. Wheeler v. Adams, 101 Mo. App. 468, 471, 74 S. W. 497.

The St. Louis Court of Appeals, in the case of Hydraulic Press Brick Co. v. School District of Kirkwood, 79 Mo. App. 665, held directors were not individually liable for failure to take a bond as required by the then existing statute, which is virtually the same as it now stands, except that then it provided that the "school district" should require a bond of the contractor. It was there observed that the statute did not point out "the directors of school districts as the persons or collection of persons who shall require the contractor to give the bond," and upon that phase of the law the decision turned and is distinguishable from the case at bar. The Kansas City Court of Appeals refers to this feature of the statute in State ex rel. Curfman Bros. v. Miller, 123 Mo. App. 730, 733, 101 S. W. 616. In 1909 (Laws 1909, p. 382; R. S. 1909, § 1247) the section was changed to read as now, except by the amendment of 1911 the board is to fix the amount of the bond. So far as we are advised, the question before us has not been squarely decided by any appellate court in this state.

It seems that in Michigan a law somewhat similar to ours is in the statutes. In the case of Owen v. Hill, 67 Mich. 43, 34 N. W. 649, there appears an opinion in which it is stated that fixing the amount of the bond and determining the solvency of the sureties involve in a limited measure the exercise of judicial functions, but it is said these functions are not so connected with the ministerial duty of requiring the bonds as to be inseparable, nor the performance of one to involve the exercise of the other:

"In neglecting to require a bond at all, the board neglected the performance of a plain ministerial duty imposed by statute, and it is well settled that, when the law casts a duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures."

It is further stated that, even if all the acts were judicial, yet the directors would be liable for failing to undertake to exercise them. The court was equally divided on this opinion, but later, by three to two, in Plummer v. Kennedy, 72 Mich. 295, 40 N. W. 433, it is approved, and in Wells v. Board of Education of West Bay City, 78 Mich. 260, 44 N. W. 267, by unanimous opinion, it was accepted as good law.

The opinion in Rhea County v. Sneed, 105 Tenn. 581, 56 S. W. 1063, holds that a county commissioner is liable for failure to take bond; but no quotation is made from the statute, so we cannot compare it with ours.

In Minnesota the failure to require bond is by statute made an offense for which recovery is therein provided. Wilcox Lumber Co. v. School District...