Goshorn's Ex'rs v. County Court Of Kanawha County
| Decision Date | 12 December 1896 |
| Citation | 26 S.E. 452,42 W.Va. 735 |
| Parties | GOSHORN'S EX'RS. v. COUNTY COURT OF KANAWHA COUNTY. |
| Court | West Virginia Supreme Court |
County Court—Contracts—Ratification— Quantum Valebant.
1. 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: In pursuance thereof the 27 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.
2. For the members of such corporation cannot individually give their consent or enter into a contract in such manner as to oblige the corporate body.
3. 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 anything about the transaction. It was not ratified by the corporate body, but, when presented for allowance and payment, it was disallowed and rejected.
4. 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.
5. 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.
(Syllabus by the Court)
Error to circuit court, Kanawha county.
Action by J. H. Goshorn's executors against the county court of Kanawha county on a contract of sale. There was a judgment for defendant, and plaintiffs bring error. Affirmed.
Kennedy & Dyer, for plaintiffs in error.
W. S. Laidley and S. c. Burdett, for defendant in error.
HOLT, P. On appeal from a judgment rendered by the circuit court 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. 8) the county courts, to be composed of three commissioners, two constituting a quorum for the transaction of business, are given, under such regulations as may be prescribed by law, 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 of —— County, " 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. Goshorn, 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 bogs to be delivered at the poor farm of Kanawha county; that, in pursuance of said contract, plaintiffs did deliver to the agent at the poor farm 27 hogs, weighing 6, 415 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 $449.05, the amount due and owing therefor, which account was duly presented to the county court at its regular December term, 1894, to be allowed and 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 complained of.
The facts are as follows: About the 10th day of September, 1894, on one of the streetsof Charleston, plaintiff G. A. Goshorn met C. S. Young, who was then president of the county court, whereupon Young said to him, "Are you going to have any hogs to sell this fall?" That plaintiff replied, "Yes, we 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 27 hogs in controversy were bought by him at 4 cents per pond gross, cash, of R. H. Armstrong, in Mason county, and shipped by steamboat at freight cost of $6.75 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 260 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. $449.05, for the 27 hogs, weighing 6, 415 pounds, at 7 cents, and $6.75 freight; but afterwards, during the same day, the court, not having signed the orders, set the same aside, and entered an order at 4 cents per pound gross, which was shown to be the fair, reasonable market price at the time of delivery, allowing plaintiffs $263.35. 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 price, which was at the time and place of delivery 4 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, $263.35, to plaintiffs, gave judgment for defendant
1. The first matter that attracts attention is why these plaintiffs should sue, as executors of J. H. 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 plaintiffs. 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; Rose's Adm'x v. Burgess, 10 Leigh, 186; Harvey v. Skipwith, 16 Grat. 393; Clarkson v. Booth, 17 Grat. 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 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 chapter 39. This corporation of the county court, created by statute, must depend both for its powers and the mode of exercising them upon the true construction of the statute creating them. The members of a corporation aggregate cannot separately and individually give their consent or enter into contract in such manner as to oblige themselves as a collective body or board. Pennsylvania L. R. Co. v. Board of Education, 20 W. Va. 360. Therefore the members of the county court, in discharging the duties heretofore devolved upon boards of overseers of the poor, and now devolved on them (see section 2 of chapter 46 of the Code), must act as a corporate body, and at the courthouse, —the place fixed by law. Two or more of them, acting as individuals, on the street (as in this case), could make no contract binding on the county court. No such individual authority is given them. They must act as a court, a quorum being present, and at the courthouse; and must enter of record all their proceedings; and their proceedings in relation to the poor should be kept in a separate book, provided for the special purpose. Therefore, unless the court in some way ratified this contract, it could have no binding...
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