Dixon v. Greene County

• Decision Date: 08 May 1899
• Citation: 25 So. 665,76 Miss. 794
• Court: Mississippi Supreme Court
• Parties: JOHN IRA DIXON ET AL. v. GREENE COUNTY ET AL

25 So. 665

76 Miss. 794

JOHN IRA DIXON ET AL. v. GREENE COUNTY ET AL

Supreme Court of Mississippi

May 8, 1899

March 1899

FROM the chancery court of Greene county, HON. NATHAN C. HILL Chancellor.

Dixon and others, appellants, were the complainants in the court below; the county of Greene and others, appellees and cross appellants, were defendants there. At its March term, 1898 the board of supervisors of Greene county adopted a plan and specifications for building a new courthouse. The order adopting the same was in these words: "Ordered by the board that plans and specifications presented by W. N Baxter, agent of F. B. & W. S. Hull, for building a courthouse for Greene county be received and adopted, and the clerk of this court is hereby authorized and required to advertise for bids for building said courthouse in accordance with said plans and specifications. Sealed bids will be received till 12 M., the first Monday in April, 1898, at which time the bids will be opened and the contract awarded to the lowest responsible bidder. The board, however, reserves the right to reject any and all bids. All bidders are required to inclose with his bid a certified check for five hundred dollars, showing good faith in said bid. If the contract be awarded to F. B. & W. S. Hull, it is understood that no charge be made for plans and specifications, but should contract be awarded to any other person, then the board agrees to pay three per cent. on the amount of contract for the use of said plan and specifications."

The specifications were quite lengthy, but it is not deemed necessary to copy the same into this report. They contained the sentence quoted in the opinion as from the contract. Nothing was done under the order for some time, but at its May, 1898, term the board again directed the clerk to advertise for sealed proposals for the building of a new courthouse, and the clerk made the following advertisement viz.: "Bids will be received till 12 o'clock M. the first Monday in June for building a courthouse for Greene county, Miss. in accordance with plans and specifications on file in the clerk's office. All bids are to be addressed to the president of the board of supervisors of said county. The board reserves the right to reject any and all bids. All bidders will be required to file with their bids a certified check for five hundred dollars as security of good faith on their part. By order of the board, May 2, 1898. Sam McLeod, clerk." At its June term, 1898, the board accepted the bid of F. B. & W. S. Hull, and awarded them the contract to build the courthouse for the sum of nine thousand five hundred dollars, and thereupon the following writing (called the memorandum in the opinion) was executed by the members of the board assuming to act in behalf of and for the county, viz.:

"Contract.--Agreement entered into between F. B. & W. S. Hull, of Jackson, Mississippi, and the county of Greene, by the board of supervisors, the sixteenth day of June, 1898.

"Party of the first part to well and sufficiently provide all necessary materials, tools and appliances used in the proper construction and completion of the courthouse to be erected on the courthouse lot at Leakesville, according to plans and specifications on file in the office of the chancery clerk, the same being part of said contract.

"The right is reserved to said second party to make any changes or alterations it may deem expedient or necessary in said plans and specifications, or in either of them, or the character or quantity of the work to be performed under this agreement, whether of material or labor, increasing or diminishing the whole cost of the work; and in the event such changes or modifications should be determined upon or ordered, first party shall execute the work accordingly, and the value thereof to be added to or deducted from the original contract price hereinafter named shall be determined by a fair and reasonable valuation to be fixed and agreed upon, in writing, between the parties hereto before proceeding therewith; or, in case of disagreement, then the valuation shall be fixed by arbitration, as hereinafter provided, and no claim shall be made against said second party for any extra work or material unless ordered by said second party, and the price thereof fixed and determined as above stipulated. Said second party shall appoint a superintendent or committee to judge as to the quality and character of the material and work required by this agreement, whose duty it shall be to inspect and to report upon the work and material during the construction of said building, and make and furnish estimates of the material furnished for and the labor performed thereon from time to time, and should any material be furnished therefor or work be done thereon which, in his or their opinion, is not in accordance with the requirements of the plans and specifications therefor, it shall be his or their duty to notify said first party thereof in person or by written notice forwarded by registered mail to its proper address, unless he or they and said second party, or its agent or subcontractor, can agree upon the subject in controversy or settle by competent authority. And should said superintendent or committee permit any part of the work on said building to be completed without objecting thereto and giving notice to the said first party as aforesaid, it shall be considered and taken the same as an approval thereof, and the said first party shall not thereafter be held responsible therefor, nor be required to reconstruct the same without full and adequate compensation therefor.

"Should any misunderstanding or disagreement arise between the parties hereto in relation to any part of the work or material provided for or embraced under the terms of this agreement, or in relation to any of the stipulations hereof, which cannot be settled between themselves, the matter in controversy shall be referred to two disinterested arbitrators, one of whom to be chosen by each of the parties hereto, and in case of disagreement between said two arbitrators they shall jointly choose a third and their decision in the matter shall be final and binding upon both parties. The expense of such arbitration to be borne equally by both parties.

"Upon final completion of the work the second party shall examine the same, and, if completed according to contract, shall immediately accept the same and make final settlement with said first party therefor as provided and stipulated.

"The foregoing contains all the understandings and agreements had between the parties hereto in relation to the erection and completion of said building and its equipments and appurtenances.

"Signed

GREENE COUNTY,

"By ALEX. WALLEY, President,

"M. J. F. MCLENDON,

"C. P. EUBANKS,

"J. D. TURNER,

"Members of the Board of Supervisors of Greene County, Mississippi.

"Signed F. B. & W. S. HULL,

"By W. N. BAXTER, Con. Agt.

"Attest: DAN. MCLEOD,

"Chancery Clerk of Greene County, Mississippi."

Soon after the award of the contract the Messrs. Hull began work. They removed the old courthouse from its site and were proceeding in the erection of a new house thereon when the complainants, citizens and taxpayers of the county, filed the bill in this case and obtained a preliminary injunction restraining the Hulls from removing the old house and the board of supervisors from paying them for erecting the new one.

Many of the allegations of the bill upon which the complainants based their claim that the contract between the county and Messrs. Hull was void were denied by the answers and were disproved. The defendants moved a dissolution of the injunction. Before its hearing the complainants insisted that the Hulls were in contempt of court for a violation of the injunction in that they had proceeded with the erection of the new house on the old courthouse site after being enjoined from removing the old house. The court below did not so adjudge, but proceeded to hear their motion, as well as the motion of the other defendants, to dissolve the injunction and decreed its dissolution in part, but retained the injunction in part, as shown in the opinion of the court. From this decree the complainants appealed to the supreme court and the defendants prosecuted a cross appeal.

Decree reversed and case remanded.

McIntosh & Rich and C. H. Wood, for appellants.

The board adopted the plans for the new courthouse with full knowledge that defendants, Hull, would become bidders for the contemplated work. The contract was subsequently awarded to defendants, Hull. After the award was made, the board of supervisors and Messrs. Hull entered into written contract, setting out in detail the terms and conditions upon which the work was to be done. Complainants, as soon as they were informed of the execution of the contract, caused to be prepared and forwarded to the clerk of the chancery court of Greene county the bill in chancery praying an injunction against the performance of the contract. Upon the receipt of the bill, the clerk of the chancery court refused to file the bill or issue the ordinary process thereon, but returned it to the counsel who had prepared it.

The defendants, Hull, after their subcontractors and agents had been informed that an injunction was being sought, entered upon the work of removing the old courthouse and the construction of the new building, and continued the work without stoppage until late in the month of February, 1899. The building of the new house was prosecuted after the writ of injunction was issued on the twentieth day of December 1898, and after defendants, Hull, and their agents and subcontractors had knowledge and after they had filed an answer to the bill. On the twenty-fifth day...