Gulfport Sash, Door & Blind Manufacturing Co. v. Town of Bond

• Decision Date: 17 May 1909
• Citation: 95 Miss. 723,49 So. 260
• Parties: GULFPORT SASH, DOOR & BLIND MANUFACTURING COMPANY v. TOWN OF BOND
• Court: Mississippi Supreme Court

49 So. 260

95 Miss. 723

GULFPORT SASH, DOOR & BLIND MANUFACTURING COMPANY v. TOWN OF BOND

Supreme Court of Mississippi

May 17, 1909

March 1909

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

The Gulfport, etc., Co., appellant, was plaintiff in the court below; the town of Bond, appellee, was defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The facts are sufficiently apparent from the opinion of the court.

Reversed and remanded.

Barrett & Taylor, for appellant.

The sole and only question for this court to decide in this case is whether or not under the evidence the court should have granted the peremptory instruction for the defendant. It is shown conclusively that an order was received by plaintiff from the town board of Bond for the material, and the town was charged with same. It is shown by the witness Williams agent of the Gulf & Ship Island Railroad Company and on reports of said company in tracing claim of a portion of a shipment by appellant to appellee which was broken in transit. (See evidence of Williams.) The material for the school building was shipped to the town of Bond, that some of the materials was damaged for which the town interposed claim against the railroad for $ 42.10, which sum was paid to the town and the money used by it; the said material was received, by the town and used in building a public schoolhouse of the said town, a necessity for the municipality. Going off on the idea that the case of Pass Christian v. Washington, 81 Miss. 470, 34 So. 225, the court below gave the peremptory instruction complained of. In that case plaintiff, a physician, discovered four cases of smallpox in the town, which he reported to the mayor and subsequently the mayor and board of aldermen passed an order appointing plaintiff health officer of the town, and requested him to take necessary sanitary precautions for the general good of the town. The court held that "a mere appointment of plaintiff as a health officer, vesting him with the usual authority with respect to sanitary precautions, is in no sense a contract to treat the patient." That case is not applicable to this. "The doctrine of implied municipal liabilities," says Mr Chief Justice FIELD, in a case where the subject, underwent a very thorough examination, "applies to cases where money or other property of a party is received under such circumstances, that the general law independent of express contract, imposes the obligation upon the city to do justice with respect to the same. If the city obtain money of another by mistake, or without authority of law, it is her duty to refund it-- not from any contract entered into by her on the subject, but from the general obligation to do justice, which binds all persons, whether natural or artificial. If the city obtain other property, which does not belong to her, it is her duty to restore it; or if used by her, to render an equivalent to the true owner. ...