Chambers v. Bd. of Educ. of the Town of Cameron
| Decision Date | 31 May 1875 |
| Citation | 60 Mo. 370 |
| Parties | VINCENT CHAMBERS, et al., Appellants, v. THE BOARD OF EDUCATION OF THE TOWN OF CAMERON, Respondent. |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court.
Wm. Henry and J. E. Merryman, for Appellants.
The contract was let to Ely, and by its terms he undertook to furnish all the materials and complete the building in a specified time and manner, and for a stipulated compensation. Hence, he was not an agent or servant of the Board. (Blake vs. Ferris, 5 N. Y., 48, 61, and cases cited; Pack vs. Mayor, &c., of New York, 8 N. Y., 222; Eaton vs. Eu. & North. R. R. Co., 59 Me., 520; Painter vs. The Mayor, &c., of Pittsburgh, 46 Penn. St., 212.)
And the rule is the same, although the contract should provide that the work was to be done under the direction and to the satisfaction of certain officers of the corporation. (Kelley v. Mayor, &c. of New York, 11 N. Y., 432; Barry vs. City of St. Louis, 17 Mo., 121.)
From the fact that Ely was not agent or servant of the Board, it follows that he might build and complete the school house by any agency, and with whatever means or material he saw fit, subject, however, to a suit for damages in case of a failure to fulfill his contract. And he might have placed upon or removed from the premises whatever material he pleased, and the title thereto would not ipso facto vest in the Board before it was worked into the building, or so attached to the premises as to become a part of the realty. (Hill Rem. Torts, p. 25; Johnson vs. Hunt, 11 Wend. 137.) And under this view of the law the appellants are the owners of the property; and the case is not changed by the private verbal understanding that Ely was to have $3000 advanced to him to buy lumber for the building, and that the lumber was to belong to the Board, because: 1. Such an understanding would be fraudulent in fact and in law, both as to creditors and subsequent purchasers. 2. Defendant could only prove its acts by its record or by a sworn copy, or a certificate by the president and secretary, and authenticated by the seal of the Board. (Wagn. Stat., 1267, § 13.) 3. No contemporaneous verbal agreement can be allowed to contradict, vary or extend a written contract. 4. If the agreement amounted to a mortgage or pledge of the lumber, it was void, because the agreement was verbal, and the pledge or mortgaged property was never delivered to the pledgee or mortgagee.
Thomas E. Turney, with S. H. Corn, for Respondent.
I. The first instruction given at the request of defendant was properly given.
The Board of Education by reason of the inspection of the superintendent employed by the Board and the payment of his estimates to Ely, had either the absolute property in the lumber, or such an interest in it as would prevent Ely from using or dealing with it for any other purpose than the erection of the school building. &.
Evidence of the parol agreement was properly admitted. It did not add to, enlarge or vary any written agreement between the parties.
II. This is not a case of an innocent purchaser for value from one in possession. The defendant was in possession and plaintiff had notice of all the facts which gave title and possession to defendant.
This was an action to recover possession of some lumber alleged to belong to the plaintiffs.
The plaintiffs were lumber dealers in Muscatine, Iowa, and sold to one Ely a lot of lumber for $3,600, for which Ely paid in cash $1,500 and was charged with the remaining $2,100. Ely was a carpenter and builder, and purchased the lumber to be used in building a school house at Cameron, for the construction of which he was the contractor, under a written contract with the defendant, the Board of Education. The lumber was forwarded to Ely, and by him hauled from the R. R. depot and placed on a lot belonging to the School Board, where the school house was to be built. It does not appear how much of the lumber was used in the building, from the month of May, when the contract was made and the building commenced, until the month of December, 1872, when the controversy upon which this action is based arose.
It appears, however, that on the 28th of December, 1872, Ely was still indebted to the plaintiffs, on account of this lumber, in the sum of $1,575, and one of the firm, having come down to Cameron to secure the debt, took a bill of sale from Ely for a portion of this lumber sufficient to cover the sum owing on it, had it marked or branded with the firm name, and was about to remove it, when the defendant claimed the ownership, and prevented its removal. This action was then brought by the plaintiffs.
There is very little, if any, discrepancy in the testimony, except upon one point, which relates to a verbal contract between two of the board of trustees and Ely.
There was a written contract between the Board of Trustees and Ely for the building of the school house, which was to cost about $21,000. This contract is in the record. By this contract, which was dated May, 4, 1872, Ely was to build the school house and appurtenances described in it, and furnish all the materials and perform all the work according to certain plans referred to in the contract and under the supervision of an architect named. The house was to be completed on the 1st of November, 1872. Charges were to be allowed by the architect, etc. The board was to pay Ely $20,789 in instalments as the work progressed, reserving ten per cent., etc., from the amount of the work done and materials delivered on the ground or in the building. These instalments were to be paid on certificate of the architect, etc. It was further provided, that for the materials used or to be used in said building, upon Ely's filing his bond for $20,000, said bond being approved by the Board, the sums required for said materials should be paid upon the written order of the architect, and when approved by order of the Board, should be paid to Ely.
This contract was duly executed, signed by the president of the Board and Ely; and on the same day Ely executed his bond for $20,000, as required by this contract. So far the facts were undisputed.
On the part of the defendant Th. E. Turney testified as follows:
This statement is denied by Ely; but as the finding was for the defendant, it may be assumed to be correct.
It further appears beyond dispute, that the lumber bought by Ely was put on the lot owned by defendant, where the building was to be erected, and was used by Ely as needed in the building.
In October, 1872, one of the plaintiffs came to Cameron to get the balance due the firm from Ely. He was informed by the treasurer of the verbal agreement which has been stated, and that Ely had been paid upon the estimates certified by the architect. At the suggestion of this member of the firm, a re-examination was made, and a mistake of $366 was discovered in favor of Ely, and the amount was paid to plaintiffs.
There is no dispute that the lumber when sent down from Iowa was put on the school lot where the building was to be erected, and remained there until this suit was brought. Upon this state of facts, the court declared the law to be as follows:
1. That from the evidence it appears that the lumber in question was purchased by A. J. Ely for the purpose of erecting a public school building for defendant, in the town of Cameron, and was placed by him on the ground of defendant, and was inspected and received by a superintendent employed by defendant, and estimates were made by said superintendent in said Ely's favor, which included said lumber and the freight thereon, and that said estimates were paid by defendants to said Ely, and that plaintiffs had notice of these facts before they purchased the lumber of said Ely; therefore the finding and judgment must be for defendants.
2. If it appears from the evidence, that at the special instance and request of plaintiffs, defendant's superintendent made a second estimate of said lumber, and that by said second estimate it was found that there was still due and unpaid a certain sum of money in addition to the amount found due upon the first estimate, and that the amount found due and unpaid was paid by defendant to plaintiffs, and at their request, the finding and judgment of the court must then be for the defendant.
3. If it appears that subsequent to the signing of the written contract the defendant furnished Ely $3,000, with which to purchase lumber, before he was entitled to any money under said contract, and in consideration thereof said Ely agreed that all lumber purchased by him should be the property of defendant when delivered on defendant's ground, and that plaintiffs had notice of these facts before they purchased said lumber of said Ely, the finding and judgment of the court must be for defendant.
4. If it appears that the purchase of the lumber by plaintiffs of Ely, was conditioned upon the recovery of the debt against him from the defendant, and that plaintiffs did...
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