Frick v. Brinkley

• Decision Date: 21 December 1895
• Citation: 33 S.W. 527,61 Ark. 397
• Parties: FRICK v. BRINKLEY
• Court: Arkansas Supreme Court

33 S.W. 527

61 Ark. 397

FRICK v. BRINKLEY

Supreme Court of Arkansas

December 21, 1895

Appeal from Monroe Circuit Court GRANT GREEN, JR., Judge.

Judgment reversed.

H. A. & J. R. Parker, for appellant.

To enter into a contract, the ayes and nays must be called and recorded. Sand. & H. Dig. sec. 5157. But, to appropriate money for any purpose, the ayes and nays are not necessary. Ib. sec. 5165. A contract with an alderman is not void, the only inhibition being that they shall not be allowed to make a profit. Ib. sec. 5166. A town council has power to dig ditches and put in tiling to drain the town, and the contract was not ultra vires. 58 Ark. 270; 40 id. 105. The vote delegating the power to the improvement committee to put in the tiling was by ayes and nays; and the committee was the agent of the town to put down the tiling. 96 U.S. 341; 1 Dillon, Mun. Corp. sec. 96 (3 ed.); Herman on Estoppel, sec 1225. This was a simple sale of tiling, and not a "job" or "contract," within the statute. The town having paid with full knowledge, although illegal it was a voluntary payment, and cannot be recovered. 2 Herm Est. sec. 1053, p. 1182; Ib. sec. 1165, p. 1299.

2. The town, having received the benefit, cannot repudiate it, or plead ultra vires. 2 Herman, Estoppel, sec. 1178, 1222-3-4-5, etc.; 36 Ark. 577; 48 id. 254; Beach, Pub. Corp. secs. 224 to 227 and 629. The town must do justice. Ib. sec. 226, etc.; 58 Ark. 348.

3. There is no question of profit in the case, as the tiling was sold at actual cost.

4. There is a clear distinction between executory contracts and those executed. 28 S.W. 1053; 9 Cal. 453; 80 Tex. 578; 38 N.E. 238. As to when unauthorized contracts are ratified, see 1 Dill. Mun. Corp. secs. 463-4-5, and notes. A contract not ultra vires may be ratified. 19 Pick. 487; 37 Conn. 578; Mansf. Dig. sec. 760.

5. The first and second declarations of law are objectionable, because (1) not applicable, and (2) not the law. Mansf. Dig. sec. 924, which limits sec. 774 id.

6. The court's finding of facts was without any evidence to support it.

W. T. Tucker and M. J. Manning for appellee.

1. Sand. & H. Dig. sec. 5166 is simply declaratory of the law as it existed before its passage. 61 N.Y. 444; Dillon, Mun. Corp. sec. 444; 91 Ind. 478; 44 Cal. 106; 87 id. 597; 25 Wis. 551; 74 id. 295. The contract was void.

2. The resolution was not passed by a majority of the council. Sand. & H. Dig. sec. 5157. Nor were the ayes and nays called and recorded. 40 Ark. 105; Dillon, Mun. Corp. sec. 291; Sand. & H. Dig. sec. 5165.

3. When money is illegally appropriated, the courts will give restitution. 52 Ark. 541.

4. The town is not estopped by the unauthorized acts of its agents. 39 Ark. 580; 42 id. 118. Nor is it responsible for the mistakes or unlawful acts of its officers. 40 Ark. 251.

5. A void contract cannot be ratified.

OPINION

BUNN, C. J.

The town council of Brinkley resolved, in the regular way, by a yea and nay vote, and by a majority of all the members elected to the council, to lay sewer piping along its streets for the purpose of drainage. Subsequently, it resolved to lay this piping along certain streets and certain blocks, presumably as an installment of the general work. This resolution does not seem to have been adopted by a majority of all the members elected to the council, nor by a yea and nay vote. The mayor, however, as authorized by the last named resolution, proceeded to advertise for bids to furnish the piping or tiling necessary to accomplish the object in hand; and, receiving no bids from any one, a number of citizens interested appealed to the council to purchase the necessary tiling and have the work done at once. At this juncture, the appellant, who was an alderman and chairman of the council improvement committee, and who was a dealer in tiling, but who seems not to have taken any part in the council's proceedings, offered to sell the necessary porous tiling, at the rate of $ 1.10 per foot, worth, as he afterwards testified, 95 cents per foot actual value, at that place. Under the circumstances the mayor accepted this offer, and the appellant laid the tiling, and made the openings and connections, and made no charge for his labor in the matter. The evidence is to the effect, that the kind of tiling thus sold to the town was worth 95 cents, actual value delivered at Brinkley, and $ 1.10 mercantile value. for this tiling the town council ratified the payment of the sum of $ 840 to appellant, being according to the price per foot agreed upon as aforesaid, by approving the account of the treasurer to that effect.

Subsequently, after a change in the composition of the council had been made, the town instituted this action against appellant to recover back the whole amount thus paid him, on the ground that the purchase was made without authority on the part of the town, and because appellant, as a member of the council and chairman of its improvement committee, could not contract with the town.

The evidence adduced to show that the price given for the tiling was excessive seems to have had reference altogether to a different class of tiling, and therefore was not contradictory of appellant's testimony as to the value of the tiling actually sold and laid. Some effort was made to show that the piping, as laid, did not properly answer the ends designed, but the testimony as to that is not satisfactory enough to be seriously considered in determining the particular issue made in this proceeding.

The court below made three declarations of law bearing on the subject, as follows, to-wit: (1) "That in all contracts for payment of money, votes must be taken by yeas and nays, and that a member of council cannot make a contract with town and share in the profits. (2) That a town may ratify the act of its agent by accepting property purchased, if the corporation has the power to make the contract. (3) That a town has the right to contract to drain its streets." With proper explanations, there does not seem to be any substantial error in these declarations of law.

As to the first, the last clause of section 5166, Sandels & Hill's Digest reads as follows: "Nor shall any alderman or member (of council) be interested, directly or indirectly, in the profits of any contract or job for work or services to be performed for the corporation." Presumably, this declaration of law was based upon this clause of the statute. If so, it is not certain that it was not erroneous, for the sale made by the appellant to the town, is not necessarily or even reasonably to be considered a "contract or job for work or services to be performed," as is contemplated by the statute. In enacting this clause, the legislature evidently had in mind an abuse that had grown up, whereby public officials became the recipients of the unusually large profits made on public contracts for work and services to be performed as a fulfillment of the contracts. Sales were not generally the subject of such abuses, for unfairness of price, as well as inferiority of quality, are of too easy detection to encourage such. But since, by the common law, a trustee or agent is not permitted to enjoy profits which rightfully belong to his cestui qui trust or principal, the court's declaration of law, looking at it from that standpoint, may not be materially wrong.

There is no serious objection to the second declaration, except that ratification, as a principle, may not be exactly applicable to the case in hand, because, generally speaking ratification of a contract must be after...