Fulton v. City of Lockwood

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; PER CURIAM
• Citation: Fulton v. City of Lockwood, 269 S.W.2d 1 (Mo. 1954)
• Decision Date: 12 April 1954
• Docket Number: No. 43788,No. 2,43788,2
• Parties: FULTON v. CITY OF LOCKWOOD et al. . Division

Page 1

269 S.W.2d 1

FULTON v. CITY OF LOCKWOOD et al.

No. 43788.

Supreme Court of Missouri. Division No. 2.

April 12, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

June 14, 1954.

T. Douglas Moore and Ludwig Meyer, Clayton, for appellant.

Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Harry G. Neale, Springfield, for respondents.

BOHLING, Commissioner.

This is an action by Edward A. Fulton (plaintiff-appellant) against the City of Lockwood (defendant-respondent), Dade County, Missouri. Plaintiff claimed he was entitled under a contract to $8,800 for engineering services to the city; that $2,500 of said $8,800 had been received; that he had been dismissed without cause by defendant before the project was undertaken, and asked judgment for the balance of his fee, to wit: $6,380. Defendant claimed the execution of the contract had never been lawfully authorized by the city, and in a counterclaim sought the recovery of the $2,500. Judgment was entered against plaintiff on his petition and for defendant in the sum of $2,500 on the counterclaim. Plaintiff has appealed from the judgment against him on his petition and the judgment in favor of defendant on its counterclaim. The amount in dispute exceeds $7,500 and we have jurisdiction of the appeal. Dawson v. Scott, 330 Mo. 185, 49 S.W.2d 87, 88.

The trial was to the court without a jury. We review the law and the evidence as in suits in equity. Consentino v. Heffelfinger, 360 Mo. 535, 229 S.W.2d 546, 549; Scott v. Kempland, Mo.Sup., 264 S.W.2d 349, 355.

The main issue is whether plaintiff's contract is ultra vires and void because its execution on behalf of the city was never authorized in writing as required by Secs. 79.150 and 432.070, hereinafter quoted. (Statutory references are to RSMo 1949 and V.A.M.S., unless otherwise indicated.)

The City of Lockwood is a city of the fourth class. Dr. T. D. Combs, the mayor, on August 2, 1945, wrote plaintiff, a registered and licensed consulting engineer of St. Louis County, Missouri, stating he would be glad to hear from him if interested in a sanitary sewerage system the city was thinking of constructing.

A reply from plaintiff, under date of August 8, 1945, was received. Plaintiff, experienced in these matters, enclosed a copy of Title V of the War Mobilization and Reconversion Act of 1944, 58 U.S. Stats. 791, Sec. 501, advising that thereunder cities might receive a 'grant of cash from the Federal Works Agency' for the preparation of plans for municipal projects, but that 'so far no funds' were available for construction. He also advised that if the project were never constructed, the city was not obligated to repay the grant, stating the loss would be 'Uncle Sam's.' He enclosed two copies of an application for a Federal grant, suggesting that it be filled out for '100%,' and that it state the city expected to raise its portion of the costs by "General Obligation Bonds to be voted." He stated it is a case of 'first come, first served'; and, if his letter met with approval, stated he would proceed upon receipt of an executed 'application form' and a map of the city.

Plaintiff enclosed two copies of an engineering contract, which he expected the city to execute if it secured 'this preliminary grant and we get started. I am not particular about the city executing this contract right now. After you get your 'offer' of funds from the government is soon enough.'

The introductory paragraphs of the contract for the engineering services of plaintiff read in part that '* * * the City of Lockwood, State of Missouri, through regular action of its Mayor and Board of Aldermen, did, upon the 27th day of February, A.D.1946, at a meeting of said Mayor and Board of Aldermen, and by proper legal means, take the necessary action to employ an engineer * * *'; and that '* * * this agreement, made this 27th day of February, A.D.1946, between the City of Lockwood, State of Missouri, Party of the First Part, through its duly constituted officials, empowered by law to enter into contracts, and Edward A. Fulton, Consulting Engineer * * *.' It provided that plaintiff receive for his services six percent of the construction cost of the improvement, $1,250 to be paid when funds were received from the Federal Government Agency for city purposes and an additional $1,250 when final plans and specifications were complete and delivered to the city. It is signed 'City of Lockwood, Missouri, by T. D. Combs, Mayor. Attest (Seal of City of Lockwood) Ray W. Abbiatti, City Clerk. Edward A. Fulton.' Plaintiff testified most of the contract was the work of the city counselor.

Plaintiff prepared the plans and specifications, reported their completion to the Federal Works Agency in October, 1946, and delivered them to the city. The estimated total cost was $160,000, of which $148,000 was for construction and $2,500 was for plan preparation. He received his first $1,250 in November, 1946.

A search of the journal of the board of aldermen by plaintiff and defendant revealed no minutes of any meeting of the board on February 27, 1946, or any authority for the execution of the contract with plaintiff on behalf of the city. The minutes were kept in longhand on notebook paper and intermittently therein pages had been torn out.

Plaintiff had never examined the journal of the city and had not seen a certified copy of any minutes of the aldermen authorizing the execution of the contract, stating that certified copies were not required by the Federal agency in Missouri. He testified that during 1945 and 1946 he was in Lockwood only on one occasion, the night 'we met over there for the purpose of signing the contract,' which he thought, but could not testify of his own knowledge, was February 27, 1946. He stated the mayor, city clerk and four aldermen were present. He could not recall the names of the aldermen, except alderman Otto Keran. He 'believed' the clerk was taking minutes, and 'believed' Mr. Keran, when the discussion was over, made the motion that the contract be entered into. He stated he then executed the contract and saw the mayor and city clerk sign it.

We state the substance of the testimony on this matter on behalf of the city. The city clerk, Ray W. Abbiatti, testified plaintiff met with members of the council with respect to the $2,500 grant from the Federal government for planning the project, and stated the Federal government was contemplating making additional grants for constructing sewer systems and he could assist the city if the appropriations were made. Plaintiff had prepared an application for a $2,500 grant from the Federal government. A journal entry of May 6, 1946, authorized the mayor to apply therefor. The city received the $2,500 in two installments and paid this money to plaintiff. The city clerk testified that once in a while he tore a sheet out of the journal for something else but had never taken a sheet out of the journal on which any of the records of the city had been recorded; that a sheet had been torn out between the minutes of the meetings of February and March, 1946, but that the sheet did not contain any minutes with respect to plaintiff's contract; that minutes of all the meetings of the aldermen of the city were recorded in the journal and are now there; that there was no meeting of the council on February 27, 1946, and that the minutes contained no authorization for the mayor or the clerk to sign any contract with the plaintiff.

Hugh Gerry testified that if plaintiff were present at but one meeting in 1945 and 1946, he was also present at that meeting, and that there was no paper signed at that meeting. Plaintiff questions Mr. Gerry being an alderman at that time, but the journal shows that he was an alderman and that his term expired in April of 1946.

Plaintiff's first amended petition was filed February 6, 1953. Defendant's first amended answer and counterclaim was filed February 11, 1953. The trial was had on said pleadings on February 11, 1953, both parties answering ready for trial. In presenting his argument that the court's finding and judgment is against the weight of the evidence plaintiff refers to the first paragraph of defendant's original counterclaim as an admission on defendant's part that plaintiff and defendant legally and lawfully entered into the contract sued upon. These pleadings are found in what is designated a 'Supplemental Transcript on Appeal.' Defendant's original counterclaim was not offered in evidence upon the trial. It is not before us. Kelso v. W. A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527, 530; Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811. Moreover, the 'Supplemental Transcript on Appeal' fails to show a compliance with the provisions of Sec. 512.110, subd. 3, and is not for consideration here.

Section 79.150 provides: 'The board of aldermen shall cause to be kept a journal of its proceedings, and the ayes and nays shall be entered on any question at the request of any two members. * * *'

Section 432.070 provides: 'No county, city, town, village * * * or other municipal corporation shall make any contract, unless * * *; and 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.'

The statute, Sec. 79.150, requiring the board of aldermen to keep a journal evidencing the acts, resolutions and ordinances of the city is mandatory. City of New Franklin ex rel. Lynch-McDonald Const. Co. v. Edwards, Mo.App., 23 S.W.2d 235, 237; City of Brunswick ex rel. Barkwell v. Scott, 219 Mo.App., 45, 275 S.W. 994, 995[1-3]. The minutes of the journal are the indispensable record of the existence of the acts of a city, as the board of aldermen can only speak through its record. Cases supra; Eureka Fire Hose Mfg. Co. v. City of Portageville, Mo.App., 106 S.W.2d 513, 516. When collateral to the...