Greeson Mfg. Co. v. County Board of Education

• Decision Date: 24 May 1928
• Docket Number: 5 Div. 995
• Citation: 217 Ala. 565,117 So. 163
• Parties: GREESON MFG. CO. v. COUNTY BOARD OF EDUCATION.
• Court: Alabama Supreme Court

117 So. 163

217 Ala. 565

GREESON MFG. CO. v. COUNTY BOARD OF EDUCATION.

5 Div. 995

Supreme Court of Alabama

May 24, 1928

Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.

Action by the Greeson Manufacturing Company against the County Board of Education of Elmore County. Judgment of nonsuit, and plaintiff appeals. Reversed and remanded.

Tate &amp Reneau, of Wetumpka, for appellant.

Holley & Milner, of Wetumpka, for appellee.

GARDNER J.

The Greeson Manufacturing Company sold to the county board of education of Elmore county certain building material to be used in the construction of a school building at Kent in said county, known as the Providence school building. The material was furnished at the request of the county superintendent of education to said board of education, and was used in the construction of the Providence school building. A portion of the bill for the material was paid from time to time by the county board in checks, but there remains a balance due of $1,230.40, which the board declines to pay, and for recovery of which this suit is brought. From adverse rulings on the evidence, plaintiff suffered a nonsuit, and prosecutes this appeal for a review thereof.

Plaintiff in the prosecution of his cause, offered to show that he appeared before the county board while in session at Wetumpka with a bill for the material, duly approved by the local building committee, attested by the signature of the chairman of said committee, which was then presented by him to said county board in session, that the chairman of the board, in the presence of the membership of the board, stated that "the county board would guarantee the payment, that it had the money in the bank with which to pay it, and that he then asked the board for a requisition," to which the chairman responded they had no requisition form, but that the board guaranteed the payment of the bill, whereupon plaintiff stated he would ship the material. Defendant's objection to this evidence was sustained, as we understand from brief of counsel, upon the theory there did not appear the matter of this contract was embraced in any resolution spread upon the minutes of the board. The argument in support of the trial court is based largely upon the provisions of section 106 of the School Code of 1924 (School Code 1927, § 132) referring to the authority of the county school board, as follows:

"It may sue and contract, all contracts to be made after resolutions have been adopted by the board, and spread upon its minutes."

Counsel for appellee cite also Ala. City Ry. Co. v. Gadsden, 185 Ala. 263, 64 So. 91, Ann.Cas.1916C, 573; McKee v. Chilton County, 19 Ala.App. 392, 97 So. 610; Mobile County v. Maddox, 195 Ala. 336, 70 So. 259; Board of Education v. Watts, 19 Ala.App. 7, 95 So. 498; and City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816. We have examined these authorities with care, but are persuaded they are not applicable to the case here presented. Were this suit upon the contract, the above-quoted statutory provision and the foregoing decisions would embarrass, if not destroy, plaintiff's right of recovery.

The suit, however, is not on the contract, but on common counts for material furnished, with the proof that the material was accepted and used by the county board, and that the sum verbally agreed upon represented a fair, reasonable market price therefor. The county board is a quasi corporation, an independent agency of the state for the purposes enumerated in the statute, and that such board had the power and authority to contract for the construction of the Providence school building is not here controverted; likewise, that it may sue and be sued. Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774. The material was therefore purchased by the county board acting within the line and scope of its authority and duty, and actually used by it for a perfectly legitimate purpose.

Plaintiff's right of recovery does not rest upon the contract, but from the general obligation to do justice and upon a promise implied by law, growing out of the use of the material by the board for legitimate, authorized purposes. This question was fully and ably discussed by this court in Allen v. Int. of La Fayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497. In that case the town had borrowed money and issued warrants for a repayment thereof, but without authority of law. The funds had been used, however, for the lawful and duly authorized purpose of purchasing a schoolhouse. Speaking to this situation, and as pertinent to the question here presented, the court said:

"The warrants in the hands of Mrs. Frederick are as if they were not, and had never been. Neither the

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