Mississippi Centennial Exposition Co. v. Luderbach

• Decision Date: 29 November 1920
• Docket Number: 21226
• Citation: 86 So. 517,123 Miss. 828
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTENNIAL EXPOSITION CO. v. LUDERBACH ET AL. (FIRST NATIONAL BANK OF GULFPORT, GARNISHEE)

86 So. 517

123 Miss. 828

MISSISSIPPI CENTENNIAL EXPOSITION CO. v. LUDERBACH ET AL. (FIRST NATIONAL BANK OF GULFPORT, GARNISHEE)

No. 21226

Supreme Court of Mississippi

November 29, 1920

October 1920

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by L. Luderbach and L. E. Luderbach partners doing business under the style of Luderbach Plumbing, Heating & Electric Company, against the Mississippi Centennial Exposition Company. Verdict for plaintiffs, and on a subsequent suggestion of garnishment against the First National Bank of Gulfport, there was a judgment for plaintiffs and the defendant and the garnishee appeal. Judgment reversed, and judgment entered for defendant.

See, also, 84 So. 165.

L. Luderbach and L. E. Luderbach, a partnership doing business under the style of Luderbach Plumbing, Heating & Electric Company, filed suit against the Mississippi Centennial Exposition Company, a body created by the legislature of 1916 under chapter 113, Laws of 1916, claiming authority to bring suit against the defendant under the terms and provisions of chapter 241, Laws of 1918; alleging that the defendant is indebted to the plaintiffs in the full sum of nine thousand, one hundred seventy-five dollars and fifty cents with interest from September 6, 1917, at six per cent. Alleging further: That on the 29th day of March, 1917, the plaintiffs and the defendant entered into a contract by which the plaintiffs agreed to construct and complete the electric system for the lighting of the buildings and grounds of the defendant, the plaintiffs furnishing the necessary materials and labor to construct said electric lighting system at and for the sum of twenty-eight thousand, seven hundred forty six dollars, making the contract an exhibit to the declaration; and that upon the execution of said contract that the plaintiffs entered into bond for the complete and faithful performance of said contract in accordance with each and every condition of the specifications prepared by the defendant's architect, and that said bond was approved and accepted by the defendant, and that thereupon the plaintiffs ordered and purchased all materials necessary to enable them to carry out said contract and began to perform the necessary work. That among other things necessary to be supplied by the plaintiffs in carrying out said contract was a quantity of underground cable which has to be specially manufactured, at a cost to the plaintiffs of nine thousand, five hundred, eleven dollars an ninety-five cents, an itemized bill of which material is made an exhibit to the declaration. That the plaintiffs were not permitted to complete their part of the contract, but were forbidden by the defendant to proceed with the same, notwithstanding the fact that plaintiffs were at all times free from fault.

That in May, 1917, defendant notified plaintiffs, who had already ordered and purchased material for the completion of said contract, to cancel all orders placed by them for material. That the plaintiffs were unable to cancel orders for material set out in Exhibit C, which had to be specially manufactured. That the plaintiffs undertook and tried to procure cancellation for the order of the manufacture of this material, but were unable to do so and were compelled to accept and pay for said cables. That the plaintiffs notified the defendant that they had been unable to procure the cancellation of the said order for the underground cable and then and there demanded of the defendant the sum of nine thousand, five hundred eleven dollars and ninety-five cents, which sum the plaintiffs were forced to pay for the said cable and notified the defendant, who had breached the contract, to save plaintiffs harmless from damage on account of said purchase by them to carry out the contract, which the defendant had so breached. That the persons from whom plaintiff purchased the said cable shipped the same to Gulfport, Miss., and that the plaintiffs were compelled to accept and pay for the same, and that the "plaintiffs then and there delivered same to the defendant by storing the same on the grounds of the defendant where the same now remains, less certain items hereinafter mentioned."

That afterwards the plaintiffs applied to the defendant for relief in the premises and offered to waive all the profits if defendant would pay the actual cost of said cable to the plaintiffs, and that the defendant refused and failed to relieve plaintiffs and notified plaintiffs they would pay nothing on account thereof. Whereupon the plaintiffs, in order to diminish their damages, made efforts to sell the said underground cable, but were unable to do so, except they found a purchaser for four hundred and fifty feet of the cable which was sold for the sum of three hundred thirty-six dollars and forty-five cents which was duly credited to the defendant.

The contract made exhibit to the declaration is rather lengthy, but in substance provides that in consideration of the price therein mentioned the plaintiffs agreed to furnish all labor, tools, equipments, supplies, fixtures, and material, to do all work and other things necessary for the proper construction and completion of a complete electrical system in and for said buildings therein named located upon the grounds of the defendant. According to the proposal and bid of the said party, the plaintiffs, and according to the plans and specifications prepared by one Lewin, an engineer, which plans and specifications are made a part of the contract, the said plaintiffs were to furnish the said material and work according to the plans and specifications "so as to furnish and complete a complete electric system for the entire grounds and buildings herein mentioned . . . at and for the sum of twenty-eight thousand, seven hundred forty-six dollars." Said work to be completed on or before September 1, 1917, with a provision for liquidated damages of fifty dollars per day for each day the contractor failed to complete the said system after the 1st of September, 1917. In consideration of the above provisions on the party of the second part, the plaintiff, the party of the first part, hereby agrees to pay the party of the second part for the said labor, materials, work, etc., as aforesaid the sum mentioned and in the manner and under the conditions set forth in the specifications.

To this declaration the defendant filed two pleas: First, that neither this court, nor any other court, has jurisdiction to render a judgment against the defendant in this cause, because it says that this defendant was created by chapter 113, Laws of 1916, and was and is a governmental agency and an arm of the government of the state of Mississippi and not subject to suit; and, second, that by section 8, chapter 113, above mentioned, it is provided that boards of supervisors and boards of municipalities authorized and empowered to appropriate money, give notes, or issue bonds in accordance with law for the purpose of supplying funds for the use of the defendant in carrying out the provisions of the act creating it, and by section 7 of the said chapter, it was provided that the contributions received from the counties and municipalities should be used in the construction of buildings, for exploiting and advertising the resources of the state of Mississippi. That by section 11 of the said chapter it is provided that the exposition shall be under the control of the commission and that the lands and buildings directed shall be deeded in fee simple to Mississippi and any surplus be held in trust by the commission for the use and holding yearly a mid-winter exposition to exploit the resources of the state. And that on the face of these provisions the city of Gulfport had issued one hundred twenty-five thousand dollars in bonds and paid the proceeds over to the defendant, the board of supervisors of Harrison county had paid a like amount, and that other towns had made similar contributions and subscriptions; and that by reason thereof the transaction constituted a contract between the Mississippi Centennial Exposition Commission, and that chapter 241, Laws of 1918, is retroactive in effect and impairs the obligations of such contracts, and it is therefore unconstitutional and void.

These pleas were demurred to by the plaintiffs, and on the filing of said demurrers the defendant moved the court to make the demurrer relate back to the declaration, which the court declined to do, but sustained the demurrers to the plea of the defendant. Thereupon the defendant pleaded that it is not indebted to plaintiffs, as alleged in the declaration, and, second, that it did not undertake and promise in the manner and form as the declaration alleged; and, third, that it never at any time received from the plaintiffs the material constituting the subject-matter of this suit, nor any part thereof, but that at all times refused so to do, and it thereupon became the duty of the plaintiffs to convert the material into money at the best available price and thereby reduce his damages as much as possible, but the plaintiffs refused and wholly neglected so to do.

To this plea last set forth the plaintiffs filed a replication setting forth that the defendant did not refuse to receive the material so mentioned or any part thereof, and that the plaintiffs were not under duty to convert said material into money, but that afterwards the defendant itself made ineffectual efforts to sell the same, and that, after the defendants had refused to permit the plaintiffs to complete their contract and had declined and refused to pay the plaintiffs for said material, the plaintiffs did endeavor to sell the material for the defendant's benefit, but were unable to do so, except as stated in the...