Milburn v. Glynn County

• Decision Date: 09 December 1899
• Citation: 34 S.E. 848,109 Ga. 473
• Parties: MILBURN v. GLYNN COUNTY.
• Court: Georgia Supreme Court

34 S.E. 848

109 Ga. 473

MILBURN v. GLYNN COUNTY.

Supreme Court of Georgia

December 9, 1899

Syllabus by the Court.

Under the law now embraced in section 343 of the Political Code and in view of the construction placed upon the provisions of section 527 of the Code of 1868 by this court in Pritchett v. Inferior Court, 46 Ga. 462, relating to the same subject-matter, a petition in an action against a county founded upon an alleged contract is not good unless it affirmatively avers that such contract was entered upon the minutes of the proper authorities in charge of the financial affairs of the county.

Error from city court of Brunswick; S.C. Atkinson, Judge.

Action by Frank P. Milburn against Glynn county. Judgment for defendant, and plaintiff brings error. Affirmed.

W. E Kay, for plaintiff in error.

F. E. Twitty and J. D. Sparks, for defendant in error.

LEWIS J.

Plaintiff brought suit against Glynn county on a written contract made September 12, 1897, between himself and the commissioners of roads and revenues of that county. By virtue of the terms of this agreement, he was employed as an architect to make plans and specifications for a court house for the county, and to supervise the construction of the building, for which he was to be paid a certain percentage of the cost of its erection. It appears from the petition that the terms of this contract were practically agreed upon by parol between the parties in February, 1897; and, before the written contract was entered into, plans and specifications of a building had been made by the plaintiff, accepted by the commissioners for the county, and he had received a cash payment of $500. The petition alleges that the plaintiff fully complied with the contract as to his part thereof, except in so far as he was prevented from so doing by the failure of defendant to proceed with the work in accordance with the terms of the contract. The commissioners, after bids by contractors were made for an amount within the limits fixed by the contract, and according to its terms, decided not to build a new court house, but bought for this purpose another building already constructed. For this reason plaintiff did not render the service of supervision the construction of the court-house building. A demurrer was field by defendant to this petition, and plaintiff in error excepts to the judgment of the court sustaining this demurrer and dismissing the action.

One ground of the demurrer is that the petition does not show that the alleged contract sued on was recorded on the minutes of the board of commissioners of roads and revenues, or that any action of said board authorizing said contract was entered or recorded on the minutes of said board of commissioners. There is no question that the petition does not contain any allegation from which it can be even inferred that the contract sued on in this case was entered upon the minutes of the board of county commissioners. It is contended, however, by counsel for plaintiff in error that the entries on the minutes set forth in the petition relative to the construction of a court house were a substantial compliance with section 343 of the Political Code, which declares, "All contracts entered into by the ordinary with other persons in behalf of the county must be in writing and entered on their minutes." The petition alleges that on the 2nd day of February, 1897, a resolution was adopted by the commissioners authorizing the chairman of the board to invite plans, specifications, etc., from competent architects of court-house buildings, to be submitted to the board for its inspection and information, and that this section was entered upon the minutes of the board. It further alleges that on the 1st day of June, 1897, the board adopted a resolution to the effect that the notice inviting sealed proposals for the erection of a court house in the county be published as required by law; the notice specifying that the commissioners invited sealed proposals for the erection and completion of a new court-house building agreeably to the plans and specifications prepared by Frank P. Milburn architect, of Charlotte, N. C., which were of file in the office of said commissioners, and open to the inspection of all, during the continuance of the notice. If further specified in the notice that the work was to be done under the supervision of the county architect, and payments made in accordance with his specifications. This resolution of the board was likewise entered on its minutes. It further appears from the petition that the cash payment of $500 was allowed by the board on September 7, 1897, and entered upon its minutes of that date. These are all the entries on the minutes insisted on by petitioner as conforming to the section of the Code above cited. We can see nothing in them that even indicates an effort on the part of these county officials to comply with the statute, which, in plain language, requires that the written contract must be entered on the minutes. There is no allusion whatever to any contract made between the plaintiff and defendant in any of these entries. No reference is made as to the terms of this contract, the amount to be paid the architect, the terms and...