Hanick v. Marion County

• Decision Date: 06 October 1925
• Docket Number: No. 24755.,24755.
• Citation: 278 S.W. 730
• Parties: HANICK v. MARION COUNTY.
• Court: Missouri Supreme Court

278 S.W. 730

HANICK v. MARION COUNTY.

No. 24755.

Supreme Court of Missouri, Division No. 2.

October 6, 1925.

Motion for Rehearing Denied December 22, 1925.

Appeal from Circuit Court, Pike County; Edgar B. Wollfolk, Judge.

Action by Owen J. Hanick against Marion County. Judgment for defendant, and plaintiff appeals. Judgment affirmed.

L. G. Blair, of Bowling Green, and Kinealy & Kinealy, of St. Louis, for appellant.

Roy Hamlin, Pros. Atty., and Ben Ely, Jr., Asst. Pros. Atty., both of Hannibal, and Hostetter & Haley, of Bowling Green, for respondent.

HIGBEE, C.

This is an action to recover $41,086.98, alleged to be due and unpaid on a contract for the construction of 10½ miles of hard-surfaced road in Marion county. From a verdict and judgment for the defendant, plaintiff appeals. On the first hearing an opinion was filed reversing the judgment and remanding the cause for a new trial. A motion for a rehearing was sustained, and the cause has been reargued.

The petition alleges: That on and prior to September 7, 1920, the state highway commission of Missouri and the defendant contemplated the construction of certain hard-surfaced roads in Marion county as part of the state highway system, including 10½ miles of road running west from the city of Hannibal, as shown and described in the plans and specifications on file in the office of the state highway commission, and known as project No. 62. That said state highway commission duly authorized Marion county to construct such hard-surfaced road, including said 10½ miles of road. That on September 7, 1920, the defendant, acting by and through its county court, as first party, and plaintiff as second party, entered into a written contract by which, in consideration of payments to be made, plaintiff agreed to do all the required work on said 10½ miles of road, as shown by the plans and specifications and in conformity therewith, and to complete the same within 350 days, exclusive of Sundays and holidays, unless additional time should be granted. Omitting certain details, it is provided by the contract that at the end of each month the summation of all bills paid out by the court on account of labor, repair, freight, rental, maintenance, and material shall be deducted from the engineer's estimate, if said estimate is in excess of costs paid by the court, and the difference shall be divided between the court and the contractor, 40 per cent. to the court and 60 per cent. to the contractor, provided 25 per cent. of the contractor's share shall be retained until the completion of the work. In the event that summation of bills exceeds engineer's estimate, excess shall be assumed by the court; provided, however, contractor shall receive no compensation for time and equipment furnished in construction of the project. That plaintiff entered upon the execution of said contract and completed the construction of said road, and same was accepted by the state highway commission and the defendant on or about December 21, 1921. That the total amount of work done by plaintiff (here the petition sets out the items of work) and the total value thereof is $150,922.49. That defendant paid out and expended for labor, materials, etc., on said work $75,777.53. That the difference between the sums so paid out by defendant and the value of the work done by plaintiff is $75144.96. That plaintiff is entitled to recover from defendant 60 per cent. of such difference, or $45,086.98. That defendant is entitled to a credit of $4,000 paid to plaintiff by the defendant, leaving a balance due plaintiff of $41,088.98, for which he prays judgment with interest from February 2), 1922, when demand was made.

Defendant's amended answer is a general denial, an averment that the defendant was without power or authority to execute the contract pleaded, and that plaintiff failed to construct the road in accordance with the plans and specifications. It also avers fraud and collusion between plaintiff and his brother M. J. Hanick, divisional engineer in charge of the construction of the state highway system in northeast Missouri, and the federal inspector. The reply is a general denial.

Plaintiff read in evidence a resolution adopted by the state highway board, reciting that the county court of Marion county made application for state and federal aid in the improvement of 10.26 miles of state road known as Missouri federal aid project 62 (sections A and B), etc., and that all requirements for said county court to receive federal and state aid on said project have been complied with under the law, and that the applications, plans, specifications, and estimates of costs on said project have been duly approved by the Missouri state highway department and the federal bureau of public roads, and that the state highway department advertised for proposals to construct said project, and no bid or proposal had been received. Therefore resolved, that the state highway department, by authority invested in it by section 8b, p. 656, of the Session Acts of 1919 (now section 10898, R. S. 1919), does hereby instruct the state highway engineer to authorize the said county court to proceed to construct the said project (sections A and B) in accordance with the plans and specifications above mentioned. The resolution binds the county court to furnish all necessary items of construction at its own cost, and to construct said project in accordance with said plans and specifications under the supervision of the state highway engineer; "that the state highway department agrees to pay said county court the share of the state in this work—which will be $1,200 per mile for 10.5 miles, plus one-half of the cost of the project in excess of the said $1,200 per mile; * * * provided the state shall not pay to the county court more than the sum of $67,744.57 on said project, regardless of the actual and true cost for completing the same." The resolution concludes: "Witness by our signatures the acceptance of and the agreement to the terms and conditions hereinbefore set forth." The resolution is signed by the chairman and secretary of the state highway board and by the judges of the county court of Marion county, and attested by the clerk of said court and the seal thereof under date of September 7, 1920. Plaintiff also read in evidence the contract between the county court of Marion county and O. J. Hanick, dated September 7, 1920, which is substantially as pleaded in the petition.

The evidence for the plaintiff tended to show the construction of the road according to the plans and specifications, and acceptance by the state highway engineer and the county court. The evidence for the defendant tended to prove that the road was note so constructed, and that the alleged acceptance was collusive.

Appellant assigns errors in the admission and rejection of evidence and in the giving and refusal of instructions, but, in the view we take of the case, it will not be necessary to notice either of these assignments. Appellant's theory of this case is best shown by the brief and argument of his learned counsel, from which we quote:

"Marion county having initiated proceedings for the construction of 10½ miles of hard-surface road here involved, and known as project No. 62, and the state highway board, the predecessor of the present state highway commission, having unsuccessfully advertised for bids, the board, at the solicitation of the county, entered into a contract with the county court on behalf of the county whereby the latter undertook to construct the road within the estimate of cost prepared by the state highway engineer. This contract obligated the state highway department to pay to Marion county the sum of $1,200 per mile, plus one-half the cost of the project in excess of $1,200 per mile, and providing that, of the estimate of cost which was then $122,889.14, the state should not pay to the county court more than $67,744.57. Thereupon Marion county contracted with plaintiff for the construction of the road in accordance with the plans and specifications, and which contract provided that plaintiff should give his time and attention to the work and furnish such necessary equipment as the county did not have, but such equipment as the county had was to be furnished without cost to the contractor, and the county moreover was to provide the gravel, pay directly all labor, maintenance, repair, and material bills in the execution of the work, and at the end of each month there should be a summation of all bills paid out by the county court, and the amount thereof deducted from the engineer's estimate of the work done, a copy of the engineer's estimate of costs is recited as being attached to the contract, and that the profits should be divided between plaintiff and defendant in the proportion of 60 per cent. to plaintiff and 40 per cent. to the defendant, with the right on the part of defendant to withhold 25 per cent. of plaintiff's share until the final completion of the work."

In their additional brief, filed at the rehearing of this cause, counsel say: "The duty to maintain, repair, and make the public highways of a county is vested in the county court," citing sections 10661, 10703, 10733 and 10783, R. S. 1919. Hence it is argued that "the contract made by respondent is legal and binding." There is no doubt that our county courts are invested with jurisdiction in the construction and maintenance of county roads and highways within the terms, conditions, and limitations prescribed by the statutes. But, by the Act of March 13, 1917 (Laws 1917, p. 485, amended Laws 1919, p. 650, now article 11, c. 98, R. S. 1919),...