Independent Paving Co. v. City of Bay St. Louis, Miss., 7568.

• Decision Date: 15 February 1935
• Docket Number: No. 7568.,7568.
• Citation: 74 F.2d 961
• Parties: INDEPENDENT PAVING CO. v. CITY OF BAY ST. LOUIS, MISS.
• Court: U.S. Court of Appeals — Fifth Circuit

74 F.2d 961 (1935)

INDEPENDENT PAVING CO. v. CITY OF BAY ST. LOUIS, MISS.

No. 7568.

Circuit Court of Appeals, Fifth Circuit.

January 19, 1935.

Rehearing Denied February 15, 1935.

W. E. Morse, of Jackson, Miss., and S. E. Morse and W. H. White, both of Gulfport, Miss., for appellant.

W. J. Gex, Sr., and Lucien M. Gex, both of Bay St. Louis, Miss., for appellee.

Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the appellant against the appellee, the city of Bay St. Louis, a Mississippi municipal corporation, for the recovery of the amount of a balance, $7,005, and interest thereon, alleged to be due under a contract between the appellee and Dixie Asphalt Paving Company, whereby the latter agreed to pave named streets in said city, the right to which balance was alleged to have been assigned to the appellant by Dixie Asphalt Paving Company. The appellee by pleading alleged that it was, at the date of the alleged making of said alleged contract, and now is, a municipal corporation operating under the commission form of government under and by virtue of a referred to Mississippi statute, and set up as a defense to the action that the contract sued on is illegal, void, ultra vires, and nonenforceable, for the reasons: (1) That said purported contract is for an amount in excess of the sum of $500, and was not made or authorized by an ordinance of said municipality passed and adopted at the time and in the manner required by a Mississippi statute (Mississippi Code 1930, § 2641), which provides, with exceptions not material to be stated, that every contract of a municipality in excess of $500 shall be made or authorized by ordinance, which "shall be introduced in the form in which it is finally adopted by the council, and read by the clerk at a regular meeting of the council, and shall thereafter remain on file with the city clerk for public inspection for at least two weeks before the final passage or adoption thereof." (2) That said purported contract was attempted to be made and executed in violation of a Mississippi statute (Mississippi Code 1930, § 5979) which provides, with an exception not material to be stated, that "no * * * indebtedness shall be incurred by any county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such * * * indebtedness." By reply, the appellant put in issue the allegations of the pleading setting up such defense, and set up that the streets were paved in accordance with the contract sued on, that appellee has accepted the benefit of said paving, and is now estopped from asserting any alleged irregularity in the proceedings of appellee's governing body leading up to the paving of said streets.

In the trial the appellant introduced in evidence a copy of each of the following, which were referred to as exhibits; the board of mayor and commissioners of appellee being referred to as the commission: A resolution adopted by the commission on May 4, 1931, directing publication of notice to bidders that contract will be let for the surfacing of named streets or so much thereof as the commission may deem necessary, including certain concrete curb and gutter, according to plans and specifications as prepared by the city engineer and approved by the commission, bids to be opened at the city hall at 10 o'clock a. m. June 1, 1931; order of the commission, made on May 18, 1931, at its second regular meeting in May, 1931, stating, "The minutes of the previous meetings were read and approved"; minutes of meeting of the commission on June 2, 1931, reciting advertisement for and submission of bids, for construction of curb and gutter and hard-surfacing of the named streets, that the Dixie Asphalt Paving Company was the lowest bidder, the awarding to that company of the contract, which fixed the price of the work, direction to the mayor to sign the contract, and requiring the contractor to furnish a bond; order of the commission that a named firm be employed to inspect the paving contracted for, and authorizing the mayor to enter into and execute such contract; minutes of meeting of the commission showing approval by city engineer of first estimate for said paving work in the sum of $5,550.80, and order that that amount be paid, also showing ratification and approval of a stated change in the contract; ordinance of the commission reciting approval by the city engineer of final estimate for work done under said contract and ordering payment of the balance shown by that contract, $15,781.61, on condition that the bond company consent in writing to such payment; minutes of a meeting of the commission reciting assignment by Dixie Asphalt Paving Company to appellant of $8,005.70 of the amount due by the city to the assignor, and the recognition and acknowledgment of that assignment by the commission; the contract for said work, signed by the contractor and by the city of Bay St. Louis, by its mayor; the above referred to assignment by Dixie Asphalt Paving Company to appellant; and written statement by the bond company, surety for the contractor, authorizing the city to pay the amount of said final estimate.

The introduction in evidence of the exhibits with...