Donovan v. Kansas City

• Decision Date: 01 November 1943
• Docket Number: No. 38305.,38305.
• Citation: 175 S.W.2d 874
• Parties: DONOVAN v. KANSAS CITY.
• Court: Missouri Supreme Court

175 S.W.2d 874

DONOVAN v. KANSAS CITY.

No. 38305.

Supreme Court of Missouri, En Banc.

November 1, 1943.

Rehearing Denied December 6, 1943.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

Action by Joseph S. Donovan, as administrator of the estate of Stephen J. Donovan, deceased, against Kansas City, Missouri, to recover for perishable foods delivered to hospitals and penal institutions of Kansas City. From a judgment for defendant, plaintiff appeals.

Affirmed.

Armwell L. Cooper and Cyrus Crane, both of Kansas City (Cooper, Neel & Sutherland, Frank W. McAllister, and William J. Carroll, all of Kansas City, of counsel), for appellant.

William E. Kemp, City Counselor, and John J. Cosgrove, Asst. City Counselor, both of Kansas City, for respondent.

James A. Reed, Robert J. Ingraham, James B. Nourse, Charles M. Blackmar, Dupuy G. Warrick, Roy K. Dietrich, James P. Aylward, Roy B. Thomson, Lawrence S. Searing, Rees Turpin, and Harry L. Thomas, all of Kansas City, amici curiae.

BOHLING, Commissioner.

Cast on demurrer nisi, plaintiff suffered judgment and appealed. Plaintiff seeks to recover for perishable foods delivered upon telephonic instructions to hospitals and penal institutions of Kansas City. The petition is in two counts in the alternative. The aggregate amount is laid at $97,562.47. Count one sounds in tort as for trover and conversion on the theory the title to the foods did not pass and seeks damages of the reasonable value of the foods. Count two is in equity and seeks the value of the benefits accruing to defendant. Plaintiff's core idea is that a contract is not involved. From the allegations in plaintiff's petition infra, the principal issues are whether defendant municipality is liable for perishable foods furnished for its immediate, necessary, and beneficial use in the maintenance of its sundry hospitals, reformatories, and kindred institutions and consumed by the inmates and attendants of such institutions (1) in the absence of a written contract therefor subscribed by the parties to the transaction (in accord with statutory — § 3349, infra — and charter — §§ 92 and 94, infra — requirements); or (in accord with charter and ordinance provisions) (2) in the absence of a written statement from the municipality's Director of Finance that a balance otherwise unencumbered existed to the credit of the appropriation against which such supplies were to be charged and a cash balance otherwise unencumbered existed in the treasury to the credit of the appropriation from which payment was to be made — §§ 91, 92, 93, and 94, infra — or (3) in the absence of an award of the order for such perishable foods to the lowest and best bidder after due opportunity for competition — §§ 80 and 92, infra,

Able counsel have advanced, we think, every conceivable issue for consideration and many authorities are presented. We understand other matters are pending the outcome of this litigation. Due to the presentation and the importance of the case we may give it more space than it ordinarily would receive under the Missouri law involved. Learned authors recognize that confusion exists in the cases. We shall endeavor to restrict observations to the particular facts of this case, the prohibitory enactments and the public policy of Missouri — factors which defendant says distinguish Missouri cases from others and when recognized tend to eliminate some of the confusion. An innocent third party is not involved. We set out so much of the statutory and charter (and ordinance, if found necessary) provisions as are material to the disposition of the case.

Section 3349, R.S.1939, Mo.R.S.A. § 3349, reads: "No * * * city * * * shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract * * *, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing." See, also, Mo.Const. Art. IV, § 48, Mo.R.S.A.

The following are from Article IV of the Charter of Kansas City:

"Sec. 80. Division of Purchases and Supplies. There shall be in the department of finance a division of purchases and supplies. The Commissioner of Purchases and Supplies shall make all purchases and contracts for purchase for the city in the manner provided by ordinance; provided, however, that in all cases there shall be opportunity for competition. * * *"

"Sec. 91. Liability for Authorization in Excess of Appropriation. The Commissioner of Purchases and Supplies shall not furnish nor order any supplies, materials, services other than personal, or equipment for a department unless he shall obtain from the Director of Finance a written statement that there is a balance otherwise unencumbered to the credit of the appropriation to which the same is to be charged and a cash balance otherwise unencumbered in the treasury to the credit of the fund from which payment is to be made, each sufficient to meet the obligation thereby incurred.

"If the Commissioner of Purchases and Supplies shall authorize or incur any obligation against the city without first securing such certification, he shall be liable personally and on his bond for the amount of such obligation.

"If the Director of Finance shall make a false certification as to the sufficiency of any such appropriation or unencumbered cash balance, he shall be liable personally and on his bond to the extent that the amount so certified exceeds such balance. * * *"

"Sec. 92. Contracts. All contracts shall be executed in the name of the city by the head of the department or officer concerned, except contracts for purchase of supplies, material, services other than personal, or equipment made by the Commissioner of Purchases and Supplies. No contract or order imposing any financial obligation on the city shall be binding upon the city unless it be in writing and unless there is a balance otherwise unencumbered to the credit of the appropriation to which the same is to be charged, and a cash balance otherwise unencumbered in the treasury to the credit of the fund from which payment is to be made, each sufficient to meet the obligation thereby incurred, and unless such contract or order bear the certificate of the Director of Finance so stating * * *. All contracts and purchases shall be awarded to the lowest and best bidder after due opportunity for competition in accordance with this charter and the ordinances of the city; but, unless otherwise provided by ordinance, it shall not be necessary to advertise for bids in any newspaper in case of contracts and purchases involving an expenditure less than $2,500. * * *"

Section 93 relates to the payment of claims and to duties of the Director of Finance in the issuance of warrants on the Treasurer. So far as material here it contains in general terms provisions imposing certain duties and personal liability on the Director of Finance and liability on his bond for enumerated derelictions of duty. Consult Sec. 91, supra.

"Sec. 94. Obligations — When Void. All contracts, agreements or other obligations entered into, all ordinances and resolutions passed, and all orders made contrary to the provisions of this article shall be void, and no person whatever shall have any claim or demand against the city thereunder, nor shall the Council or any officer of the city waive or qualify the limitations fixed by this article, or impose upon the city any liability whatever in excess thereof."

Ordinance provisions, if they become of importance, will be developed in the course of the opinion.

Plaintiff's petition is to be read in the light of the above enactments. Its allegations are to the following effect:

Stephen J. Donovan merchandised meats, poultry and like food products for human consumption in Kansas City. He died in 1940. Joseph S. Donovan, as administrator of Stephen J. Donovan's estate, is plaintiff. Under its charter and the police power, Kansas City operates and maintains hospitals and penal institutions. The petition charges "that in such operation and maintenance it is and at all times has been necessary for the defendant to daily acquire and to constantly supply perishable foods to the sick and attendants in said hospitals and to such prisoners or inmates and attendants (as it has uniformly done) to sustain and preserve their health and life * * *." Without this, it is alleged, great and irreparable injury and damage would result to defendant city and all the inhabitants thereof, and the operation and maintenance of said hospitals and penal institutions and the acquisition of such foods has been beneficial to defendant and has contributed to the general welfare of its entire population.

From November 23, 1937, to April 1, 1938, and from October 1, 1938, to April 29, 1939, from day to day, plaintiff's decedent, upon telephonic instructions from defendant, acting through its Commissioner of Purchases and Supplies (hereinafter sometimes referred to as Commissioner) delivered to defendant large quantities of perishable foods for the purposes aforesaid (and which were so used) of the aggregate value of $97,562.47. Plaintiff's decedent delivered said food products believing, in good faith, that defendant would pay therefor, without which belief such deliveries would not have been made; but defendant refused plaintiff's decedent and plaintiff payment therefor, and still so refuses, upon the following grounds asserted by it: Here plaintiff's petition sets forth the municipality's defenses in greater detail than we have stated them in the first paragraph of this opinion.

The normal practice was to use five duplicate printed forms for the requisition and purchase of perishable foods. Upon the original would be listed the items required and the prices therefor. It showed the approval of the department head, bore the certification of the...