J. B. Klein Iron & Foundry Co. v. Bd. of Cnty. Com'Rs of Canadian Cnty.
| Decision Date | 27 October 1936 |
| Docket Number | Case Number: 25490 |
| Citation | 178 Okla. 72,1936 OK 675,61 P.2d 1055 |
| Parties | J. B. KLEIN IRON & FOUNDRY CO. v. BOARD OF COUNTY COM'RS OF CANADIAN COUNTY. |
| Court | Oklahoma Supreme Court |
¶0 1. MUNICIPAL CORPORATIONS - Counties - Invalidity of Debt in Excess of Constitutional or Statutory Limit - Vendor Under Illegal Contract not Permitted to Recover Either Value or Property From Municipality.
A debt which is in excess of the constitutional or statutory limit is void; and in no form can such debt be held valid upon any theory of quantum meruit, or equitable obligation. The absolute lack of power to contract such indebtedness bars every form of action and legal device by which recovery is sought; nor will the courts aid the vendor to recover the property sold and delivered under such illegal contract.
2. SAME - Inhibitory Statute as Part of Contract - Seller's Sole Remedy That of Suit Against Officers.
Section 5955, O. S. 1931, makes all contracts which fall within its inhibition void only as to the municipality. The provisions of the section become a part of each and every such contract as completely as if written therein. He who furnishes goods, wares, and merchandise or labor under contracts, express or implied, such as in said section referred to, has only one remedy in the courts, and that is a suit against the officers. This remedy being exclusive, he cannot recover the goods delivered from the municipality. He parts with the title, both legal and equitable, knowing who must pay therefor; and at his own risk, he accepts the responsibility of the officers individually for his pay. If he does not see fit to pursue his remedy against them, he cannot recover either the value or the property from the municipality.
Appeal from District Court, Canadian County; Lucius Babcock, Judge.
Action by the J. B. Klein Iron & Foundry Company against the Board of County Commissioners of Canadian County. Judgment for defendant, and plaintiff appeals. Affirmed.
Shirk, Danner & Phelps, for plaintiff in error.
S.T. Roberson, County Atty. , for defendant in error.
¶1 This action was instituted in the district court of Canadian county by J. B. Klein Iron & Foundry Company, hereinafter referred to as plaintiff, against the board of county commissioners of Canadian county, hereinafter referred to as defendants. Two causes of action are stated in the petition. The first cause of action was for recovery by replevin of certain bridge materials sold and delivered to the defendant upon an alleged oral contract. In the second cause of action it was sought, in the alternative, to recover the value of said property. The cause was tried to the court and judgment was rendered in favor of defendant, from which plaintiff has appealed.
¶2 Plaintiff alleges that it is a corporation engaged in the manufacture, fabrication, and sale of bridge material and other structural iron and steel; that during the year 1932 the board of county commissioners of Canadian county was composed of Ralph Whitlock, W.H. Johnson, and R.G. Courtney; that in August, 1932, by reason of a sudden, unexpected, unusually heavy rainfall in Canadian county, a bridge located approximately one mile north and one mile west of the town of Yukon was washed out; that said bridge was in commissioner's district No. 2, from which Ralph Whitlock had been duly elected; that in order to replace said bridge as expeditiously as possible, an oral contract was made between Commissioner Whitlock and one Hugh Roberts, the agent of plaintiff, whereby plaintiff agreed to furnish certain materials with which to construct a bridge across the stream where said bridge had been washed out, with the oral agreement and understanding that plaintiff retain title to said bridge materials until they should be paid for by Canadian county. Pursuant to said agreement plaintiff furnished to said defendant steel bridge material of the total value of $3,536. It is further alleged that after said bridge materials had been received, put in place, and used a few months, the said Whitlock informed plaintiff that the board of county commissioners would not purchase the said bridge materials and directed plaintiff to remove and take possession of said property; that on June 11, 1933, plaintiff attempted to remove and take possession of said bridge materials, but was prevented from doing so by the action of the county attorney and sheriff of Canadian county. Plaintiff prayed that a writ of replevin be issued directing the sheriff to take possession of said bridge material and deliver the same to plaintiff and upon final hearing plaintiff be adjudged to be the lawful owner of said property.
¶3 For its second cause of action plaintiff alleged the unlawful appropriation of said bridge material by defendant and prayed in the alternative for judgment in the sum of with interest.
¶4 The evidence in this case does not support the allegations of the petition to the effect that the title of the bridge material was to remain in the plaintiff until paid for by the county. The evidence discloses that after the bridge materials had been received and put in place a number of claims were filed with the county clerk of Canadian county aggregating $1,800, each claim being less than $500. None of these claims were paid, and Commissioner Whitlock advised plaintiff that the county would be unable to pay for the materials and suggested that plaintiff retake possession thereof. The plaintiff attempted to do so, but was stopped when the county attorney procured the arrest of certain employees of plaintiff who were engaged in dismantling the bridge.
¶5 The theory upon which plaintiff seeks a reversal of the judgment of the trial court is stated in the brief as follows:
"It has never been our contention that there was any contract whatever between plaintiff in error and defendant in error for the sale and purchase of the bridge, but it is our contention, and has been all along, that inasmuch as plaintiff in error parted with valuable property, and Canadian county was the recipient thereof and put the same to valuable use, and is still using this property, defendant in error is bound both in law and honor to either pay for it or return it."
¶6 In view of the above concession by plaintiff, it will not be necessary to review at length the various provisions of the statutes relating to the power and authority of the commissioners to bind the county by a contract of purchase.
¶7 There is a general rule recognized in many jurisdictions that where, under a contract with a political subdivision of the state, which is merely invalid and not fraudulent, or malum in se, one who has furnished to a municipality or other political subdivision real or personal property, which the public fails to pay for, may recover it in specie, if recovery may...
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Cummings v. Bd. of Ed. Okla. City
...to seek a return in an independent subsequent action is somewhat doubtful (see discussion in J. B. Klein Iron & Foundry Co. v. Board of Com'rs of Canadian Co., 178 Okla. 72, 61 P.2d 1055). ¶44 We have permitted ourselves to digress for the moment slightly beyond the requirements of the prec......
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Cummings v. Board of Educ. of Oklahoma City
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Columbia Ins. Co. v. Bd. of Educ. of Joint Sch. Dist. No. 1, Counties of Pontotoc
...an agreement, is denied. * * *" ¶9 The doctrine so announced was followed in the case of J. B. Klein Iron & Foundry Co. v. Board of County Commissioners of Canadian County, 178 Okla. 72, 61 P.2d 1055, wherein it was sought to recover from the county, by replevin, certain materials furnished......
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Brians v. Consol. Sch. Dist. No. 5, Okmulgee Cnty.
...204, 250 P. 1003; Dungan v. Independent School Dist. No. 89, 182 Okla. 185, 77 P.2d 1117; J. B. Klein Iron & Foundry Co. v. Board of County Commissioners of Canadian County, 178 Okla. 72, 61 P.2d 1055. In the latter case in the syllabus we said:"Section 5955, O. S. 1931, makes all contracts......