Moscow Hardware Co., Ltd. v. Regents of University of Idaho
| Decision Date | 25 February 1911 |
| Citation | 113 P. 731,19 Idaho 420 |
| Parties | MOSCOW HARDWARE CO., LTD., Plaintiff, v. THE REGENTS OF THE UNIVERSITY OF IDAHO and THE STATE OF IDAHO, Defendants |
| Court | Idaho Supreme Court |
STATE UNIVERSITY-BOARD OF REGENTS-POWERS OF-ERECTION OF BUILDINGS-CONTRACT FOR-FORFEITURE-COMPLETION BY BOARD.
(Syllabus by the court.)
1. The Board of Regents of the State University let a contract to Colson & Son for the construction of the foundation of what is known as the Administration Building, for the contract price of $24,535, and in addition to said price the said board agreed to pay to said Colson & Son for excavating for said foundation, excavating for drain ditches, for furnishing tile and laying and covering the same, a certain price per cubic yard and per lineal foot, amounting, with the contract price, to $31,071.15. According to the estimates of the architect, the contractors had expended in work and material on said foundation the sum of $7,845.79, and it cost the Board of Regents to complete the work the sum of $24,905.18, thus leaving in the hands of the board $6,165.97 of the contract price for said work. Held, that the Board of Regents must apportion said balance of $6,165.97 pro rata according to the amount found due to each, among the respective claimants who established their claims for material, hardware and furnishings to Colson & Son and used by them in said foundation. The materials furnished to Colson & Son for said foundation and thereafter used by the board in the completion of said foundation must be paid for by the board.
2. Under the provisions of sec. 491, Rev. Codes, the Board of Regents is authorized to expend such portion of the income of the university fund as it may deem expedient, for the erection of suitable buildings, etc., but under the provisions of said section, said board is not authorized to expend any portion of the university funds that have been raised or appropriated for other purposes for the erection of buildings.
3. Said board has no authority whatever to incur any indebtedness against the state, directly or indirectly, in the erection of university buildings for which it has not the funds to pay.
4. Under the provisions of sec. 3 of an act of the territorial legislature, approved January 30, 1889, entitled "An act to establish the University of Idaho" (Sess. Laws 1889 p. 17), the Board of Regents was made a body corporate by the name of "The Regents of the State University," and under the provisions of sec. 10, art. 9, of the constitution of the state, the regents have the general supervision of the university and control and direction of all of the funds of and appropriations to the university under such "regulations as may be prescribed by law."
5. Said board may enter into a contract for the erection of buildings for said university, and if it fails to comply with the terms of such contract, an action may be maintained in the district court against it to compel it to do so.
6. In such action any judgment obtained against the board should be paid out of any funds in the hands of the board or its treasurer that are available for the payment of such claim or that are subject to appropriation and expenditure for that purpose.
7. If the board has no money out of which to pay any judgment obtained against it, the judgment creditor must bring his action in this court based upon such judgment and ask for a recommendatory judgment to the legislature.
Original action for a recommendatory judgment. Denied.
C. J Orland and G. G. Pickett, for Plaintiff.
It is indisputable that the value of the labor and material furnished by Colson & Son is the amount fixed by the architect Loring as $ 7,845.76. He was the architect in charge of the work and his estimates are binding upon the parties. (Thompson v. Bradbury, 5 Idaho 760, 51 P 758; Tally v. Parsons, 131 Cal. 516, 63 P. 833; Amer. Bonding Co. v. Gibson, 127 F. 671, 62 C. C. A. 397; 30 Am. & Eng. Ency. of Law, 2d ed., 1270.)
Where work and material have been furnished under a void contract with a municipality, but one which it was competent to make, not ultra vires, the plaintiff may recover the value of the labor and material.
The corporation must either return the property or pay its reasonable value. (Lincoln Land Co. v. Village of Grant, 57 Neb. 70, 77 N.W. 349; Pimental v. San Francisco, 21 Cal. 363; Pittsburg C. & St. L. R. Co. v. Keokuk & H. B. G., 131 U.S. 371-389, 9 S.Ct. 770, 33 L.Ed. 157; Paul v. City of Kenosha, 22 Wis. 266, 94 Am. Dec. 598; Brown v. Atchison, 39 Kan. 37, 7 Am. St. 515, 17 P. 465; Chapman v. Board of Com., 107 U.S. 350, 2 S.Ct. 62, 27 L.Ed. 378; Parkersburg v. Brown, 106 U.S. 488, 27 L.Ed. 238; Livingston v. School Dist., 11 S.D. 150, 76 N.W. 301; Illinois T. & S. Bk. v. Arkansas C. W. Co., 67 F. 197; Kauffman v. Raeder, 108 F. 171, 47 C. C. A. 278, 54 L. R. A. 247.)
Where work and material are furnished under a contract in the construction of a building, but not according to its terms, which are of some value, the owner must pay the value of the benefits received. (School Dist. v. Boyer, 46 Kan. 54, 26 P. 484; School Dist. v. Lund, 51 Kan. 731, 33 P. 595; Aetna Iron & Steel W. v. Kossuth Co., 79 Iowa 40, 44 N.W. 215; McKinney v. Springer, 3 Ind. 59, 54 Am. Dec. 471.)
No doubt under the terms of the contract the regents would have the right to complete the work, and any balance of the contract price after paying the cost of completion would belong to the contractor Colson & Son, or their assignee.
If there was a contract, the defendant Board of Regents breached it repeatedly; they did not only not deliver warrants allowed and issued upon estimates, but did not have estimates made as agreed by contract, and while several thousands of dollars' worth of labor and material was furnished, they paid not one dollar to the contractor.
Should the court so find, the plaintiff as assignee can sue either upon a quantum meruit or upon the contract as it elects (Spaulding v. Coeur d'Alene Ry. Co., 5 Idaho 528, 51 P. 408), and the plaintiff, as assignee, has all the rights which Colson & Son would have if claim had not been assigned. (Howell v. Medler, 41 Mich. 641, 2 N.W. 911.)
D. C. McDougall, Attorney General, J. H. Peterson and O. M. Van Duyn, Assistants, for Defendants, cite no authorities on points decided.
This action was brought by the Moscow Hardware Co. against the Regents of the University of Idaho and the state of Idaho.
As a first cause of action, the plaintiff alleges that between October 1, 1906, and April 1, 1907, it delivered and furnished building material, hardware, finishings, goods, wares and merchandise to be used in the construction of the building known as the "Agricultural Building" of the University of the State of Idaho, of the value of $ 1,468.45, and that there remains due thereon the sum of $ 1,174.77; that said goods, wares and merchandise were furnished to Colson & Son, who were the contractors, with the actual knowledge of the defendants, and that said goods, wares and merchandise were placed in the building for the use and benefit of the defendants.
For a second cause of action, it is alleged that between October 10, 1906, and April 1, 1907, the plaintiff sold and delivered to the defendant upon the order of Colson & Son, goods, wares and merchandise and building material to be used, and which were used, in the construction and erection of the foundation of the Administration Building of the University of Idaho, and that said goods and materials were delivered on the grounds near where the foundation was being constructed in the city of Moscow; that Colson & Son were in charge of the work in procuring said material and in the construction of said foundation, and were doing said work under the direction and authority and with the knowledge and consent of the defendants and as its agents and representatives; that on or about February 13, 1907, the Board of Regents discharged Colson & Son and took into its possession all the goods, wares and merchandise, hardware and building material which plaintiff had delivered as aforesaid, and appropriated the same to their own use and benefit; that the defendants, nor either of them, has paid for the same or any part thereof, the reasonable value of which materials, merchandise, etc., is $ 414.38, with interest thereon.
As a third cause of action, plaintiff alleges that between October 1, 1906, and January 1, 1907, the Standard Lumber Co. delivered to the defendants upon the order of J. A. Colson & Son, goods, wares, merchandise, lumber and building materials to be used in and which were actually used in the construction and erection of said foundation, with the knowledge and consent of the defendants; that on or about February 13, the defendants, said Board of Regents, discharged Colson & Son, and took into their possession all of the goods, wares, merchandise, lumber and building materials which had been delivered by said Lumber Co., and kept and used the same in the building and construction of the foundation of the Administration Building; that said merchandise and...
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