Clark v. Miller

Decision Date16 March 1925
Docket Number24507
Citation105 So. 502,142 Miss. 123
CourtMississippi Supreme Court
PartiesCLARK et al. v. MILLER, STATE REVENUE AGENT. [*]

Suggestion of Error Overruled May 4, 1925.

(In Banc.)

1. LEVEES AND FLOOD CONTROL. Allegations as to awarding second contract held to negative intention to waive breach of first contract.

The allegation in a bill to recover damages for the breach of a contract made with a board of levee commissioners, the substance of which is that the contractors notified the commissioners that they were unable to proceed further and wholly abandoned the contract, whereupon they became liable to the commissioners for the damage thereby sustained, and that the commissioners then advertised for bids for a new contract, the lowest bid received therefor being one by the original contractors with whom a new contract was then entered into for the work contemplated by the original contract at an increased cost, negatives any intention on the part of the commissioners to waive any breach of the first contract by the making of the second.

2 PLEADING. Recital in exhibit controls allegation in bill in conflict with it only where exhibit is made basis of relief sought.

The rule of pleading under section 579, Code of 1906; Hemingway's Code, section 339, that, where there is a conflict between an allegation in the bill and a recital in an exhibit the latter controls on demurrer can be invoked only where the exhibit is made the basis of the relief sought.

3 STATES. Constitutional provision prohibiting granting additional compensation after contract made binds legislature and subordinate state agencies.

The provision of section 96 of the Constitution of 1890 prohibiting the legislature from granting extra compensation to a public contractor after contract made binds not only the legislature but all subordinate state agencies created or controlled by it.

4. LEVEES AND FLOOD CONTROL. Yazoo Mississippi levee board can exercise only such powers as legislature delegates to it.

The Yazoo Mississippi levee board, except as may be otherwise provided by the constitution, is subject to the supervision and control of the legislature and can exercise, unless the constitution otherwise provides, only such powers as may be delegated to it by the legislature.

5. LEVEES AND FLOOD CONTROL. Compensation paid by levee board in excess of that provided by contract can be recovered by levee board or state revenue agent.

Compensation paid by the Yazoo Mississippi levee board to a contractor for building a levee in excess of that provided by the contract is prohibited by section 96 of the constitution, and may be recovered from the contractor by the levee board or the state revenue agent.

6 EQUITY. Bill of complaint is multifarious if it seeks recovery on separate causes of action flowing from distinct sources, as to which some defendants are liable on one and not on other causes.

A bill of complaint is multifarious when recovery is sought thereby on two or more causes of action which flow from separate and distinct sources, and some of the defendants to the bill who are liable on one, have no connection with and are not liable on the other, cause of action.

HON. C. L. LOMAX, Chancellor.

APPEAL from chancery court of Leflore county, HON. C. L. LOMAX, Chancellor.

Suit by W. J. Miller, state revenue agent, against R. T. Clark and others. From decree overruling demurrers to bill, defendants appeal. Reversed and remanded.

Judgment reversed and cause remanded.

Engle & Laub, for appellants R. T. Clark and R. P. Harris.

Authority of levee board: The authority of the levee board has been ably discussed in the case of Ham v. Levee Commissioners, 83 Miss. 534. In that case the supreme court of Mississippi said: "In view of the generality and broadness of the terms employed in granting powers to the board, it is plain that it was the intention to vest the boards of levee commissioners with plenary authority to deal with the 'erection, maintenance and repair' of the levee system at their discretion for the purpose of protecting the property of their respective districts from loss and destruction. The act incorporating the board of levee commissioners of the Yazoo-Mississippi Delta specially directs that it shall be construed as 'an exercise by the legislature of all the powers appertaining to it necessary to carry into effect the intent of said act;' and as stated, this legislative enactment is practically embodied in our organic law.

"The terms employed in the Constitution, by every reasonable interpretation, convey the evident desire of clothing levee boards with the power to 'erect,' 'construct' and 'locate' levees . . . manifestly referring to levees to be built in the future as contingencies might arise or the judgment of the levee commissioners dictate." Ham case, 83 Miss. 552-553. This case held the levee board has plenary authority and discretion in carrying out the purpose of its creation and this purpose was to protect the lands in the district from overflow. In doing what the levee board did in the instant case, the board was exercising duties of a judicial and discretionary nature and the courts in the absence of fraud or a palpable abuse of the discretion by the levee board have no power to control its actions. Ham v. Levee Commissioners, 83 Miss. 534; 19 R. C. L. page 1067, "Municipal Corporations," sec. 355.

The courts will not by injunction control the discretion of officers or boards where this would amount merely to the substitution of the judgment or discretion of the court for that of the officer whose duty it is to perform an act, the propriety of which is questioned. 3 Elliott on Contracts, sec. 2570, page 710; 8 Elliott on Contracts, sec. 2570, page 424.

When the question came before the board of either increasing the price or having the work abandoned, the board was confronted with the proposition of permitting the lands subject to its care to be in danger of overflow or to pay more money and have the work rushed to completion.

The date set forth in the bill of complaint and in the contract shows that the contract was let in 1916 at a time when the United States was not engaged in war and that these increases were made at a time when our country was engaged in war. The levee board had full knowledge of all conditions and the proposition the board had to deal with was one peculiarly within its power. It made a new contract and we submit that this new contract was supported by a sufficient consideration and is valid and binding. The board first made a new contract with some of the parties involved in the original contract and later the board made a new contract with one of these parties, and later reduced the price on this last contract. The board conducted the affair so as to bring about the completion of the contract and the protection of the lands committed to its care.

The making of these new contracts discharged the old contract. 3 Elliott on Contracts, sections 1864, 1865, 1866 and 1867; 8 Elliott on Contracts, sections 1864, 1865 1866 and 1867. The levee board had the right to elect to proceed under the terms of the contract and put the contractors in default and sue them on their bond, or the levee board had the right to make a new arrangement. It made the new arrangement and is bound thereby. 13 C. J., Contracts, section 212 (c) section 213.

After a contract has been broken, there is nothing to prevent the parties from entering into a new contract involving part or all of the same subject-matter. 13 C. J., page 590, citing Rothenberg v. Packard, 97 Miss. 428, 52 So. 458; Linz v. Schuck, 124 A. S. R. 481.

In this case the levee board is estopped by its dealings with the contractor to contend that it can now recover the money which it voluntarily paid. The contractor had to pay additional amounts to get the work done as it is a matter of general knowledge that prices of everything which went into the fulfilling of this contract had appreciably advanced. 1 Elliott on Contracts, sec. 615; City of Natchez v. Mallery, 54 Miss. 499; City of New Orleans v. Crescent City R. Co., 6 So. 719.

In the instant case, the levee board was acting in line with the purpose of its creation and was doing authorized acts and had the power to do what it did do and in matters of this kind there is no distinction between estoppel of public bodies and individuals and private corporations. 21 C. J., "Estoppel," sec. 190 (8), Public Government and Public Officials (A); Iowa v. Carr, 191 F. 257, 266, 112 C. C. A. 477; Com. v. Smith, 4 Pa. L. J. 121, 124, 125; U. S. v. Stinson, 125 F. 907, 910, 60 C. C. A. 615 (aff. 197 U.S. 200), 25 S. C. T. 426, 49 L.Ed. 724; Utah Power, etc., Co. v. U.S. 230 F. 328, 144 C. C. A. 470; U. S. v. Williamette Valley, etc., Wagon-Road Co., 54 F. 807. This is not a case of want of power in the levee board to deal with the situation, but at most is a case of irregular exercise of power, and the levee board is now estopped to go back on its act. 21 C. J., "Estoppel," secs. 218 and 219 and notes cited numbers 37, 38 and 46; Hutchinson & Southern Ry. Co. v. Fox, 15 L. R. A. 401, 30 A. S. R. 273.

The levee board in making these payments was not acting in a ministerial capacity, but was exercising a judicial and discretionary authority.

The federal government, at the time this levee board was having this work done, granted an increase in price to contractors doing levee work. The federal government realized that owing to changed conditions and increased prices brought about by the war, that the levees could not be completed by the contractors at the prices originally agreed upon, and increased prices were from time to time agreed upon and paid. This levee board did nothing more than was...

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