Goshorn's Ex'rs v. County Court Of Kanawha County.
| Decision Date | 12 December 1896 |
| Citation | 42 W.Va. 735 |
| Court | West Virginia Supreme Court |
| Parties | Goshorn's Ex'rs v. County Court of Kanawha County. |
Two members of the county court of Kanawha county, made by law a corporation, on the streets of Charleston, and as individuals, gave the following order: "Charleston, W." Va., Nov. 12, 1894. Mr. George A. Goshorn Dear Sir: You will please deliver to Kanawha county poor farm, by river, as soon as there is water in the river for large boats to run so you can deliver same, 60 hogs, for use of poor farm, at 7 cents per pound. J. D. Shrewsbury. C. S. Young, Pres. Kana. Co. Ct." In pursuance thereof the twenty seven hogs in controversy were delivered at the poor farm, received by the superintendent, and appropriated to the use of the poor. Held, that such transaction, unless ratified by the county court, had no binding force on said corporation.
For the members of such corporation can not individually give their consent or enter into a contract in such manner as to oblige the corporate body.
It was not ratified by the superintendent of the poor farm, as he did not appear to have the authority, express or implied, to have made the original contract, or to know any thing about the transaction. It was not ratified by the corporate body, but, when presented for allowance and payment, it was disallowed and rejected.
The county court, not being able, without its fault, to return the same hogs, was liable to pay what they were reasonably worth, viz. the fair market value at the time and place of delivery, with such incidental sums added as were necessary to make the sellers whole.
The county court is a corporation created by statute, and can only do such things as are authorized by law, and in the mode prescribed.
Kennedy & Dyer for plaintiffs in error, cited 106 Ind. 151; 1 Beach, Pub. Corp. §§ 689-90 (notes); 15 Barb. 323; 33 Ohio St. Rep. 336; 25 Pac. Rep. 1020; 1 Dill. (4th Ed.) pp. 539-40, §§ 463-64; 4 Cash. (Mass.) 494; 35 JST. H. 477; 8 Nev. 181; 79 Me. 305.
W. S. Laidley, S. C. Burdett and A. C. Blair, Pros. Att'y, for defendant in error, cited 27 W. Va. 245, 255; Code, c. 39, ss. 6, 8a, 46; 23 W. Va. 318, 617; 16 Am. St. Rep. 224; 35 Am. Dec. 54; 88 Va. 990; 20 W. Va. 360; 43 Am. Dec. 740; 25 W. Va. 173; Cook, Stockholders 592, 624, 712; Greens Ultra Vires, 550, etc.; 18 Am. St. Hep. 889; Lawson Cont. 17:2; 6 Bacon's Abridgt, 559; 6 Leigh, 47; 9 Pet. 607, 629; 68 Am. Dec. 235; 12 Ga. 205; 23 111. 470; 13 Iowa, 214-15; 14 Wis. 553; 12 Allen, 487, 493; 12 Minn. 298; 32 Pa, St. 340; 73 Ala. 447; 21 Wis. 464; 10 Cal. 367; 18 Md. 276, 283; 59 Mo. App. 532; Story Agency, §§ 243, 244, 250; 29 W. Va. 381; 23 Am. St. Rep. 491; 2 Bart. Chy. 237; 31 W. Va 688; 1 Cranch, C. C. 131, 138, 167, 181; Bart. L. Pp. 335 (notes); 1 Wait, Act. & Def. 398; 36 Miss. 458; 1 Jones, K C. L. 341; 4 Minn. Inst, part 1, 695; Hogg's PI. § 220.
Holt, President:
On appeal from a judgment rendered by the Circuit Conrt of Kanawha county on the 1st day of July, 1895, in favor of defendant below, defendant in error. By the Constitution of this state (see sections 22-24, art. VIII) the county courts, to be composed of three commissio?iers, two constituting a quorum for the transaction of business, are given, under such regulations as may be prescribed bylaw, the superintendence and administration of the internal police and fiscal affairs of their counties; and by chapter 39 of the Code the county court of every county shall be a corporation by the name of the"County Court ofCounty," by which name it may sue and be sued, plead and be impleaded, and contract and be contracted with; and by chapter 46 of the Code the county court of every county shall hereafter do and perform all the duties heretofore devolved upon the boards of overseers of the poor, and by sections 19 and 20 may appoint an agent who shall have charge of the county infirmary, or place of general reception for the poor of the county, but he shall be at all times under the control of the county court, and observe the rules and regulations prescribed by it.
The plaintiffs claim that on the 10th day of December, 1894, as executors of J. H Gosborn, deceased, they entered into a contract with the county court, through C. S. Young, president of the said county court, and Jacob Shrewsbury, one of the commissioners thereof, whereby the county court agreed and promised to purchase of plaintiffs a lot of hogs at the price of seven cents per pound gross, the hogs to be delivered at the poor farm of Kanawha county; that, in pursuance of said contract, plaintiff did deliver to the agent at the poor farm twenty seven hogs, weighing six thousand four hundred and fifteen pounds, and that defendant thus received and accepted and used and consumed the hogs, whereby they became indebted and liable to pay plaintiffs the sum. of four hundred and forty nine dollars and five cents, the amount due and owing therefor, which account wras duly presented to the county court at its regular December term, 1894, to be allowed for payment, to be provided for as required by law; but the county court disallowed the same, and thereupon plaintiffs brought this suit, which resulted in the judgment for the county court which is here complaine 1 of.
The facts are as follows: About the 10th day of September, 1894 on one of the streets of Charleston, plaintiff G. A. Gosborn met C. S. Young, who was then president of the county court, wThereupon Young said to him, "Are you going to have any hogs to sell this fall?" The plaintiff replied "Yes, wTe will have some hogs to sell." Young then asked plaintiff Goshorn what they would be worth, and plaintiff replied that it was then too early to say, but he would let him know the price later; and on November 12, 1894, plaintiff again met Young on one of the streets, and informed him that he would take seven cents per pound gross, and Young replied, "We will take them." Plaintiff then drew up a paper, which was afterwards signed, and returned to him, as follows: That pursuant to the order and request the twenty seven hogs in controversy were bought by him at four cents per pound gross, cash, of R. H. Armstrong, in Mason county, and shipped by steamboat at freight cost of six dollars and seventy live cents to the poor farm, where they were received and slaughtered by John Thomas, then superintendent of the poor farm. They were nice hogs, averaging about two hundred and sixty pounds. On the 22d day of November, 1895, a regular court day, Goshorn met Young at the courthouse door, and handed him the account. The court on that day passed upon, and by its order entered of record allowed, the plaintiff's amount, viz. four hundred and forty nine dollars and five cents, for the twenty seven hogs, weighing six thousand four hundred and fifteen pounds, at seven cents, and six dollars and seventy five cents freight; but afterwards during the same day, the court, not having signed the orders, set the same aside, and entered an order at four cents per pound gross, which was shown to be the fair, reasonable market price at the time of delivery, allowing plaintiffs two hundred and sixty three dollars and thirty five cents. The court decided that this contract relied on by plaintiffs was not the contract of or binding upon the defendant, the county court; that plaintiffs were entitled to the fair market price, which was at the time and place of delivery four cents per pound; and that the county having by order of 22d November, 1895, allowed for the hogs that price, and for the freight, caused its order for that amount to be issued., and signed by the president, directing the sheriff to pay the same, to wit, two hundred and sixty three dollars and thirty five cents, to plaintiffs, gave judgment for defendant.
1. The first matter that attracts attention is why these plaintiffs should sue, as executors of J. II. Goshorn, deceased for the price of hogs bought by themselves of Armstrong, and sold to the county court. It is evidently a contract in their own right, and they must be regarded as suing in suo jure, though the description of executors be added to their names as plaintiifs. Such matter of description may, however, be treated as surplusage, and therefore a harmless error. See 3 Lomax, Ex'rs, marg. p. 371; 3 Rob. Prac. (New Ed.) 518; Hose's Adm'x v. Burgess, 10 Leigh, 186; Harvey v. Skipwith, 16 Gratt. 393; Clarksonv. Booth, 17 Gratt. 490, 497.
2. Was any express and binding contract made with the county court? Section 40 of chapter 39 provides that every person having a claim or demand against a county shall file the claim with the clerk of the county court thereof an account or statement of the same, fully setting forth the items. The clerk shall present such account or statement to such court at its first meeting thereafter, which shall allow the whole, or such part thereof as they may deem just, or disallow the whole. Section 38 provides that no money shall be paid by the sheriff out of the county treasury except upon a proper order, signed, etc., and by section 36 no order shall be drawn on the county treasury unless authorized by a special order or appropriation of the county court, except, etc. By section 46 all the proceedings of the county court are required to be entered of record. The several commissioners of the court have no authority or power to act except as conservators of the peace. See clause 2 of section 3a of...
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