City of Hattiesburg v. Cobb Bros. Const. Co

• Decision Date: 28 October 1935
• Docket Number: 31854
• Citation: 174 Miss. 20,163 So. 676
• Court: Mississippi Supreme Court
• Parties: CITY OF HATTIESBURG v. COBB BROS. CONST. CO

163 So. 676

174 Miss. 20

CITY OF HATTIESBURG v. COBB BROS. CONST. CO

No. 31854

Supreme Court of Mississippi

October 28, 1935

Division B

1. MUNICIPAL CORPORATIONS.

Money deposited by bidder for municipality's construction contract guaranteeing that it would enter into contract should bid be accepted can be recovered by bidder because of honest mistake in calculation in making bid, provided he gives notice of withdrawal of bid before action is taken thereon.

2 DISCOVERY.

Bill waiving answer under oath held insufficient as bill for discovery in absence of other equity.

3 DISCOVERY.

Bill for discovery must contain sufficient averments of facts to disclose actual existing cause of action, which are as definite as circumstances will permit, showing that matters sought are not within reasonable reach of complainant.

4 DISCOVERY.

Bill for discovery of municipality's advertisement for bids for sewer construction together with correspondence, letters, notice, documents, or other instruments respecting controversy in municipality's possession or control, or that of its officers, held insufficient as bill for discovery, since things for which discovery was sought were public records to which public was entitled to reasonable access.

5. LIMITATION OF ACTIONS.

Six-year statute of limitations covering all written contracts held to cover implied contract provable entirely by writing, although promise to pay is not expressed in writing and writing is not signed by promisor, where promise arises out of writing by implication and all material facts out of which promise arises are provable by writing without break in chain of writings requiring supplementary parol evidence (Code 1930, section 2292).

6. LIMITATION OF ACTIONS.

Implied contract based upon chain of writings in which there is break requiring supplementary parol evidence for proof of contract is governed by three-year statute of limitations covering actions on unwritten contracts (Code 1930, section 2299).

7. LIMITATION OF ACTIONS.

Action to recover money deposited by bidder for municipal sewer construction contract guaranteeing that it would enter into contract upon acceptance of bid commenced more than three years but less than six years after cause of action arose would be barred by three-year statute of limitations applicable to actions on unwritten contracts only in case of oral withdrawal of bid if written record had been kept of proceedings of city's may or and commissioners in reference to matter (Code 1930, sections 2292, 2299).

HON. BEN STEVENS, Chancellor.

APPEAL from the chancery court of Forrest county HON. BEN. STEVENS, Chancellor.

Action by the Cobb Brothers Construction Company against the City of Hattiesburg. From an order overruling defendant's demurrer, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Heidelberg & Roberts, of Hattiesburg, for appellant.

Section 2299 of the Mississippi Code of 1930, provides that actions "on any unwritten contract, express or implied," are barred within three years next after the cause of action accrued. The cause of action, if any, in this case accrued either in September or October, 1929, and the suit was not filed until more than five years thereafter. The action is clearly an action on an implied unwritten contract.

Palmetto Fire Ins. Co. v. Allen, 141 Miss. 681, 105 So. 769; Younglove v. Hoburg, 195 Iowa 281, 191 N.W. 985; Bessler Movable Stairway Co. v. Bank, 140 So. 537, 106 So. 445; Willard v. Doran & Wright Co., 1 N.Y.S. 588, 48 Hun. 402.

This suit is not and does not purport to be a suit upon any written contract, and if the complainant was ever entitled to any recourse whatsoever insofar as the recovery of the two thousand five hundred dollars in question is concerned, it was because the law implied upon the defendant a promise to repay that which it had received by mistake, thereby constituting the action as one upon an unwritten implied contract.

Musgrove v. Jackson, 59 Miss. 390; Buntyn et al. v. Building & Loan Assn., 86 Miss. 454, 38 So. 345; Beck v. Tucker, 147 Miss. 401, 113 So. 209; Warren-Godwin Lbr. Co. v. Lbr. Mineral Co., 82 So. 257.

In order for a writing to be a written contract within the six year statute, it must be a writing evidencing an acknowledgment of indebtedness or promise to pay in such terms as to render any supplementary evidence unnecessary.

Foote v. Farmer, 71 Miss. 148; Wally v. L. N. Dantzler Lbr. Co., 81 So. 489; D. S. Pate Lbr. Co. v. Southern Ry. in Mississippi, 76 So. 481; Federal Land Bank v. Collins, 127 So. 570; Blount v. Miller, 160 So. 598; Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co., 158 So. 779; Hawkins v. Ellis, 168 Miss. 428, 151 So. 569; Galveston H. & S. A. Ry. Co. v. Lykes Bros., 294 F. 968; Phoenix Lbr. Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707.

In view of the fact that the city authorities were criticised in the lower court for pleading the statute of limitations in this action, we call the court's attention to the fact that it was not only their privilege to do so, but their duty.

Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84.

Another point of law set forth in the answer and decided adversely by the court, was that the bill in this case sought to recover interest on the two thousand five hundred dollars in question. A municipality is not liable for interest in the absence of a contract authorized by statute.

City of Natchez v. McGehee, 127 So. 903.

There are two, reasons why the bill is insufficient as a bill for discovery: first, it waives answer under oath.

Griffith's Chancery Practice, sec. 364, page 370.

Second, the information sought by way of discovery is information contained in public records, which are open to the inspection of everyone, including the appellee, and the bill does not charge that appellee had made any effort to find these records or that it had been denied access thereto.

Griffith's Chancery Practice, sec. 430, page 452.

This action is not an equitable proceeding to rescind a contract by reason of mistake, but on the contrary is a common law action for money had and received.

Younglove v. Hoburg, 195 Iowa 281, 191 N.W. 985.

Stevens & Currie, of Hattiesburg, for appellee.

The appellee insists that the three year statute does not apply, and that section 2299 of the Mississippi Code of 1930, has no relevance whatever. It is our position that the six year statute applies.

The obligation in the present case amounts to more than an unwritten implied contract, and is, we insist, if an implied contract at all, one that rests upon written instruments, and one that is therefore governed by the six year statute.

Complainant in the present case is not relying upon the canceled and endorsed check alone, but the check is a mere circumstance, and a mere piece of evidence, which when taken in connection with the bid and all the other documents, we submit, establishes liability on the part of the city.

Counsel suggest that in the event this cause is reversed and remanded, it should be sent to the circuit court, and not to the chancery court. We submit the chancery court is a proper forum. The facts of this case render it peculiarly appropriate for equity jurisdiction. We insist there was no error on the part of the lower court in overruling the demurrer, but if there is, that the cause should be reversed and remanded to the chancery court for an amendment of the bill. It is easily within the contemplation of the bill, if amendment is necessary, to require the defendant's answer under oath to the discovery, and that of course could only be done in a chancery court.

Washington v. Soria, 19 So. 485; Cock et al. v. Abernathy, 28 So. 18; Fowlkes v. Lea, 36 So. 1036; Masonic Benefit Assn. of Stringer Grand Lodge v. First State Bank of Columbus, 55 So. 408; Yazoo & Miss. Valley Ry. Co. v. Willis, 71 So. 563; Illinois Central Ry. Co. v. Jackson Oil & Refining Company, 71 So. 568.

The three-year statute of limitation (section 3099, Code of 1906, section 2463, Hemingway's Code) applies alone to actions on open or stated accounts not acknowledged in writing, signed by the debtor, and on unwritten contracts expressed or implied, while section 3097, Code 1906 (section 2461, Hemingway's Code), governs among other causes of action written contracts expressed or implied not signed by the debtor.

Blodgett v. Pearl River County, 98 So. 227; DeSoto County v. Wood, 116 So. 738; Milam. v. Paxton et al., 134 So. 171; Dunn v. Dent et al., 153 So. 798.

Argued orally by Rowland W. Heidelberg, for appellant, and by George W. Currie, for appellee.

OPINION

Anderson, J.

Appellee filed its bill in the chancery court of Forrest county against appellant to recover the sum of two thousand five, hundred dollars, and for discovery in aid thereof. Appellant answered the bill, and embodied in its answer grounds of demurrer separately set out as authorized by section 378, Code 1930. The demurrer was overruled, and an appeal granted to settle the principles of the cause.

The bill charged, in substance, the following facts: That on September 12, 1929, appellant advertised for bids from contractors for the construction of certain sewer lines in the city. That appellee, among others, filed a bid for the doing of the work and furnishing the specified materials provided for in the advertisement and plans and specifications on file in the office of the city engineer, and tendered with its bid a certified check in the sum of two thousand five hundred dollars as a guaranty that it would enter into the contract to do the work in the event its bid should be accepted. That by inadvertence and mistake appellee had erroneously calculated the amount of the costs of the work and the...