Marshall County v. Callahan

• Decision Date: 20 November 1922
• Docket Number: 22500
• Citation: 94 So. 5,130 Miss. 271
• Court: Mississippi Supreme Court
• Parties: MARSHALL COUNTY v. CALLAHAN et al

94 So. 5

130 Miss. 271

MARSHALL COUNTY v. CALLAHAN et al

No. 22500

Supreme Court of Mississippi

November 20, 1922

On suggestion of error. Suggestion of error overruled.

For former opinion, see 93 So. 194.

Suggestion of error overruled.

D. M. Featherston, Wall Doxey and C. L. Bates, for appellants.

The appellees in their brief filed in this case base their whole argument on their allegation of "appellant's failure and inability to perform its part;" that the alleged work done, after the fifth day of January by appellees, might be omitted and still appellant not be entitled to recover because it was not ready, willing and able to perform its part of the contract.

They ignore entirely the allegations of appellant, that appellees had breached, broken and abandoned the contract on their part long before July or August, and would have this court decide the case upon the self-serving declaration of appellees, that "they would go back and complete their contract, if paid for the alleged work done after the fifth day of January and guaranteed that they would be paid, for future work," as made before the board of supervisors, in July or August. Was appellant able to perform?

The contention of appellees that the proof shows that appellant was not able to perform its part of the contract and to pay the contractor for the whole of the work that he performed and the work necessary to complete the roads according to the contract, is wholly untenable.

Let it be remembered that this road district was created, the contract made and the work let under chapter 176, Laws of 1914, under which bonds could be issued for only ten per cent of the assessed value of the property in the district and it is conclusively presumed that the bonds issued did not exceed that limitation.

But under section three of the Act approved March 26, of the Laws of 1920, amending said Act of 1914, the board of supervisors was authorized to issue additional bonds not to exceed five per cent additional of the value of the property in the district; and that amended law was in force some months before the contractor raised any question as to the ability of the county to pay him for the whole construction of the work. Under the amendment provided in the last act, the power of the board of supervisors to raise the necessary funds is clear and absolute; and the present contention of the contractor was an afterthought and a subterfuge to escape liability for his own breach of the contract.

The said third section of said Laws of 1920, chapter 277 contains this provision, to-wit: "That any county or supervisors' district or part of supervisors' district or districts which have heretofore issued bonds in said county, supervisors' district or parts of supervisors' district or districts to an amount of ten per cent of the assessed valuation of said county supervisors' district or parts of supervisors' district or districts, may, under the provisions of this act and in pursuance thereof, issue bonds in addition to those already issued if bonds have heretofore been issued to an amount of ten per cent of the said assessed valuation of said county, supervisors' district or parts of supervisors' district or districts." (See Laws 1920, chapter 277, section 3, later clause, page 394).

This is a general law of the state and appellees are charged with notice. The county being authorized to issue more bonds, was able to perform and was willing as shown by notices sent contractor to resume work. Appellees cited Leek Milling Company v. Langford, 81 Miss. 728, as exactly in point.

We cannot agree with them. That case states the general rule of law, that a party must be financially able to perform his covenants. We do not think the general rule of law means that a party must have the money necessary to fulfill the said covenants actually in his hands at the time. The facts in Milling Company v. Langford, show conclusively that the party was unable to perform his contract. He was honestly and zealously endeavoring so to do. Twice was his machinery levied upon and taken away from him by law, and he had no means or credit with which to purchase more.

The facts there are very different to the fact in the case at bar. In that case Chief Justice WHITFIELD delivered the opinion of the court said: "There is very much in the evidence to suggest the fact that the machinery bought by the appellee was levied upon and taken from him, from time to time, because he failed to pay the purchase money, was itself the reason of the contract going to pieces (81 Miss. 731). That shows a case of absolute insolvency and bankruptcy, between which and the case at bar there is no analogy.

The inability of the party to perform in that case was absolute. 13 C. J., sec. 724, page 651. "It would seem that the impossibility of performance by the party must be absolute. " This court was applying this rule under the facts in the case of Milling Co. v. Langford. Was the impossibility of the appellant to perform absolute? They must be absolute (13 C. J., sec. 669, p. 615). "Mere probability that the adverse party will be unable to perform at the time fixed is insufficient to justify a rescission."

Appellees contend that the failure to pay the alleged claim for the work alleged to have been done after the fifth day of January as justifying them in refusing to resume work, when called upon so to do, and prevents recovery and that the refusal of said claim may be considered as one fact showing appellant's inability to perform, and cites as sustaining this contention, Phillips, etc., Construction Co. v. Seymore et al. 91 U. S. Supreme Court Reports 646, 23 L.Ed. 341. We would again call the attention of this court to the difference in the facts in the case at bar and that cited. In that case, there was not one, but two payments past due, for the months of October and November. Quoting from the opinion in that case by Justice MILLER in U. S. Supreme Court Reports, page 647: "The plaintiff brought this action of covenant on these contracts, alleging that they had commenced the work in the month of July, 1872, shortly after the contract was signed, and prosecuted it vigorously until sometime in December; that defendant had failed to pay the large sum due by the estimates for work done in October and November; and seeing no prospect of payments, plaintiffs were compelled to abandon the work and bring this suit."

There was no question in that case of contractor having breached, broken and abandoned the contract, nor of any contested claim for work, the estimates by engineers were there according to the terms of the contract, there were two large payments past due and no prospects of their being paid and contractor was vigorously prosecuting the work, when he was informed or learned of the other party's absolute inability to perform their part of the contract.

In the case at bar there is only one claim for alleged work, which is denied by the appellant as being due or a legal charge. There is no estimate of the engineer of said alleged work for which said claim is preferred. The appellee not only was not prosecuting the work vigorously, but had ignored all notices given by appellant to prosecute said work to completion, and had employed counsel in April to represent him in this case, and it is alleged that he had some time previously abandoned said contract and breached and broken the same, and we insist that the evidence in the case bears out said allegation, and that there is no analogy between the case cited and the case at bar. The facts in the case cited from U. S. Supreme Court reports, show that the technical default in that case had been waived by the other parties, to the contract. The general rule of law must be applied to the facts in the case at bar.

The citation from Corpus Juris, given in appellees' brief, is not applicable to the principle or rule of law under discussion "Inability to Perform." Section 148, Vol. 9, page 810, conclusion of paragraph as cited in appellees' brief is misleading. We content ourselves with quoting section 148, 9 C. J., page 809: "Damages for defective performance or nonperformance--in general. An owner who has sustained injury by reason of a breach of the contract by the builder may recover either in an independent action, or as a set-off or counterclaim in an action by the builder, all damages therefor which are the proximate result of the breach; but he cannot recover remote or speculative damages. Where the builder is justified in abandoning further work under the contract, the owner cannot recover damages for a failure fully to perform the contract."

We don't think that the case of Young v. Leflore County, 81 Miss. 466, holds that. We have no fault to find with the decision in that case. The decision was based upon sections 292 and 342 of the Code of 1892. Section 292 of said Code is 311 of the Code of 1906 and 342 is section 363 of the Code of 1906. As we read the decision in that case the court simply said to them, you have mistaken your legal remedy; you could have appealed from the decision of the board of supervisors or sued in an independent action as section 292, Code of 1892, section 311, Code of 1906, which provides a claim against a county must be presented to the board of supervisors before suit can be entered thereon, and that the party may then appeal from said board's decision or may enter independent suit. There is no intimation that the contract in that case was superior to the statute, but if we read the decision correctly the rights of the party or parties under the contract were controlled by and enforceable under the statute, and that is all appellant is contending for in the case at bar.

Appellee quotes from 9 Corpus Juris, page 833, sec....