Lamar County v. Tally

• Decision Date: 21 January 1918
• Docket Number: 19645
• Citation: 116 Miss. 588,77 So. 299
• Parties: LAMAR COUNTY v. TALLY & MAYSON
• Court: Mississippi Supreme Court

77 So. 299

116 Miss. 588

LAMAR COUNTY v. TALLY & MAYSON

No. 19645

Supreme Court of Mississippi

January 21, 1918

APPEAL from the circuit court of Lamar county, HON. A. E WEATHERSBY, Judge.

Claim by Tally & Mayson, attorney, against Lamar County. The claim being denied by the board of supervisors, claimants appeal to the circuit court, where judgment was rendered for claimants and the county appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Hathorn & Hathorn, for appellants.

Our first contention is that under the contract or order of the board exhibited by appellees, if their claim is being asserted under it, they are not entitled to attorneys' fees, for the reason that the suit of the White Company v John I. Cook, Treasure, was not "successfully terminated in favor of said treasurer." The fact is the suit was lost and under appellee's contract they were entitled to no compensation at all.

The burden is of course on appellees show by a preponderance of the evidence, everything necessary to establish their claim and the same rule applies in presenting to the board of supervisors as would in a court of law. Have they met the burden?

The contract says: "It is hereby ordered that Tally and Mayson be employed to represent and defend the said treasurer against any action filed against him to compel the payment of said warrant."

There is nothing in the contract to indicate that the case was to be carried to the supreme court, and we are sure that if the case had successfully terminated in favor of the treasurer in the circuit court, that under this contract appellees would have been entitled to the five hundred dollars appropriated and certainly so unless it had been clearly shown that the intention of the parties in contracting was that the case must be defended on through all the higher courts.

We insist however that instead of appellees showing that they were entitled to have the court of last resort pass upon the case before they would be barred from recovery under their contract, they have shown conclusively that it was never intended either by themselves or by appellants that they should prosecute the appeal to the supreme court. The record shows that the district attorney, whose official duty it was to represent appellants, prosecuted the appeal, the only thing being done by him being the filing of a petition for appeal, and notice to the stenographer, and that the board abandoned the appeal before anything was done further.

Certainly defendants had a right not to appeal the cases if they wished, and they were under no obligation, either moral legal, or contractual, to appeal the cases in order that it might be determined whether or not appellees had earned their fee under their contract; especially since the contract does not specifically provide for the appeal. Who has the right to say where the cases shall be stopped, the defendants, or appellees? Appellants and the defendants to the suits had the exclusive right to abandon the appeals, and appellees, under the facts as shown by this record, have no just cause of complaint.

If they can recover at all, they must recover on the contract, and this they cannot do, and, as we understand from Mr Mayson's testimony, they are not even attempting to do. They cannot recover in the case as disclosed by this record on quantum meruit.

"The board of supervisors can only bind the county by an affirmative act within the scope of its authority. Its contracts must be evidence by an entry on its minutes, and the same cannot be varied by proof that the party dealing with the board was led into a misunderstanding of the contract by some members of the board, who in open session, when the contract was entered into made incorrect statements to him as to its terms. Bridges v. Clay County, 58 Miss. 817.

The case of Groton Bridge & Manufacturing Co. v. Warren County, 80 Miss. 214, 31 So. 711, covers the foregoing question very fully, and goes at length to expound the law, and a reading of it must convince the court that appellees cannot recover in this case on quantum meruit.

The court in that case, quoting from Delafield v. Illinois, 2 Hill. 175 and Wolcott v. Lawrence County, 26 Mo. 272, with approval says: "The petition in this case does not aver a contract of any kind with the county court, but plaintiff seeks to recover upon a quantum meruit. In our opinion the county is not liable upon an implied promise. The acceptance of the building by the county court did not help the plaintiff, for the ratification must come from the principal."

In Marion County v. Woulard. 27 So. 619, where Woulard was suing to recover for services as a quarantine guard, the court said, in reversing the judgment of the circuit court: "Nor was there any contract made on the minutes of the board, nor was there on said minutes an order, establishing local quarantine, etc.," and citing thereunder with approval Bridges v. Clay County, supra.

11 Cyc. page 397, says: "County boards are unusually required to keep a regular record of their proceedings at each session, and when they are required to keep a regular record of their proceedings they can speek only by such record." Also on page 398: "It is the usual rule that the action of county boards, in order to be binding upon the county, must be shown by the record of their proceedings. It has been so held in respect to contracts made by them.

Certainly appellees would have to show, by a preponderance of the evidence that appellants have not lived up to the contract before it could be laid aside and a recovery had on quantum meruit, if such recovery could be had against the county in this case at all, and this they have wholly failed to do. The court will bear in mind that this recovery is not based on a verbal contract of the board or a verbal understanding which was not placed on the minutes, but on quantum meruit for services which the board did not consent to at all, except it be the contract which appellees say they were prevented from carrying out, hence the case is clearly distinguished from Crump v. Colfax County, 52 Miss. 107.

We earnestly insist that, viewing this case from its every angle and taking the entire record, this court will reverse the judgment of the circuit court and enter an order here affirming the judgment of the board of supervisors.

J. W. Flowers, for appellee.

Under section 309, a county may sue and be sued. When it is sued or when there is a suit which involves the county's interests and the county is in court directly or indirectly, it is subject to the same general rules that control litigants of other kinds. A county should not be embarrassed in making compromises. It should be able to settle cases just as other litigants settle them when they think best. State v. Fragaicomo, 71 Miss. 425, 15 So. 798; Eastman-Gardner Company v. Adams, 58 So. 221.

When a county makes a contract like this that was made with these appellees, that is, to pay a fee provided certain litigation shall be carried to a successful conclusion the county does not relinquish to the attorneys its right to compromise the litigation. It would not be just, however, to allow to a county the right to undermine its contract by the exercise of this inherent right to compromise. The county should not be permitted to exercise this undoubted right at the expense of the attorneys already engaged to prosecute the litigation to the end. To engage attorneys and permit them to go part of the way and perform part of the services under an agreement that they shall prosecute to the end and be paid only in the event their services are successful and then to settle the case over their protest would be unfairness and injustice approaching fraud if the attorneys are left without remedy. Compromises are usually brought about by services of the attorneys. In most instances of this nature the court would get the benefit of the services in the compromise. The county gets the benefit of the services before the point is reached at which the attorneys might under their conditional contract demand their compensation.

It is argued by counsel for appellant that since there was a contract with these attorneys which was not carried out then they have no contract upon which to stand, and that since they have no contract under the terms of which they can recover, they cannot recover the value of their services. Three or four authorities are cited which we will mention later. However, the general rule is that where a county board has authority to make a contract and one is undertaken to be made, though irregularly made, and the work is done by the person with whom the board is dealing, the county will have to pay the reasonable value of the services rendered. See State of Minnesota, ex rel. v. Clarke, 116 Minn. 500, 134 N.W. 129; 39 L. R. A. (N. S.) 43, and note; also note to Perry Ice Company v. Perry, 29 Okla. 593, 39 L. R. A. (N. S.) 72. These notes refer to a more extensive one beginning on page 1117 of 27 L. R. A. (N. S.).

In support of the said general rule there are cited two Mississippi cases. One of these is Methodist Church v. Vicksburg, 50 Miss. 601. The other case cited in the said note in 27 L. R. A. (N. S.) is Crump v. Colfax County, 52 Miss. 107.

This holding of the court is distinguishable from that in Board of Supervisors v. Patrick, 54 Miss. 240, in which case a contract to build a courthouse was publicly let after notice and the contract was made based upon the specifications on file at the time. The contractors after the building was completed presented a claim for two thousand dollars worth of extra work and material; of course if the board had to let the contract publicly in the first instance and according to...