People's Bank of Weir v. Attala County

• Decision Date: 17 February 1930
• Docket Number: 28427
• Citation: 126 So. 192,156 Miss. 560
• Parties: PEOPLE'S BANK OF WEIR v. ATTALA COUNTY
• Court: Mississippi Supreme Court

126 So. 192

156 Miss. 560

PEOPLE'S BANK OF WEIR v. ATTALA COUNTY

No. 28427

Supreme Court of Mississippi

February 17, 1930

Division B

1 COUNTIES. Strict legal technicality cannot be required of minutes of boards of supervisors.

Strict legal technicality cannot be required of minutes of boards of supervisors, but all that is required is substance and good sense in terms used.

2 COUNTIES. Board of supervisors' order for purchase of tractor sufficiently showed notice and proof of publication of notice to bidders was on file at time.

Order of board of supervisors of county for purchase of tractor stating in effect that it appeared that due and legal notice of intention of board to buy tractor had been given according to law, as shown by proof of publication of such notice duly made, "and which is made part and parcel of this order as fully as if herein set out at length," held to sufficiently show that notice and proof of publication of notice to bidders was on file at time order was made.

3. COUNTIES. Supervisors' order reciting due and legal notice of intention to buy tractor had been given need not set out details of giving notice.

Order of board of supervisors for purchase of tractor, reciting that due and legal notice of intention of board to buy tractor had been given according to law, as shown by proof of publication of notice duly made, need not set out details of giving of notice and publication.

4. COUNTIES. Bid to furnish tractor accepted by county supervisors, was binding without an order entered showing tractor had been delivered and accepted by board.

Bid to furnish tractor for certain price, accepted by county board of supervisors in writing, was complete as written contract, and bound board when entered on minutes, and it was unnecessary that there be an order entered showing that tractor purchased had been delivered and inspected and accepted by board.

5. COUNTIES. Furnishing of machinery to county is not "public work" within statute prohibiting payments, except after inspection and acceptance (Hemingway's Code 1927, section 4042).

Furnishing of machinery and the like to county is not "public work" within meaning of Hemingway's Code 1927, section 4042, providing that payments shall not be made for bridges and other public work, except after inspection and acceptance, and that this must be entered on minutes.

6. COUNTIES. Assignment of claim against county for purchase price of tractor sold was valid without consent of county, though there was element of guaranty or warranty. (Hemingway's Code 1927, section 510).

Under Code 1906, section 717 (Hemingway's Code 1927, section 510), assignment of claim against county for purchase price of tractor sold was valid without consent of county, though there was an element of guaranty or warranty between seller and county.

HON. JNO. F. ALLEN, Judge.

APPEAL from circuit court of Attala county HON. JNO. F. ALLEN, Judge.

Action by the People's Bank of Weir against Attala County. From the judgment, plaintiff appeals. Reversed and remanded.

Judgment reversed and case remanded.

Alexander & Alexander, of Jackson, and D. H. Glass, of Kosciusko, for appellant.

The demurrer admits that the publication of notice by the board, delivery, the receiving and accepting of bids and the awarding of the contract, were regularly done.

If there is no statute requiring a formal ceremony of acceptance, by the board of supervisors, the matter may be determined simply as one of fact.

The burden of proof is upon a buyer to show nonacceptance, since use creates presumption of acceptance.

35 Cyc. 259-261; Stillwell, etc., v. Biloxi Canning Co., 78 Miss: 779; Hopkins v. Leon County, 74 So. 20.

The principles of estoppel against counties and municipal corporations, have frequently been upheld by our courts.

Witherspoon v. City of Meridian, 60 Miss. 288; Natchez v. Mallery, 54 Miss. 499; 21 C. J., page 1189.

Jas. T. Crawley, of Kosciusko, for appellee.

A demurrer admits only all facts which are well pleaded. But does not admit facts which are set forth in improper or illegal pleadings.

First National Bank v. Adams, 123 Miss. 279.

A demurrer does not admit mere conclusions of law.

Perkins v. Guy, 55 Miss. 153; Barnes v. Jones, 103 So. 173.

Mere recitals in a declaration of an alleged claim are not an averment of fact, the existence of which is admitted by demurrer. Demurrers do not admit conclusions of fact.

Barnes v. Jones, 139 Miss. 675.

A board of supervisors can contract and can speak only through its minutes.

Bridges & Hill v. Board of Supervisors of Clay County, 58 Miss. 817; Amite County v. Mills, 138 Miss. 322; Smith v. Mangum, 127 Miss. 192; Carroll v. Tishomingo County, 28 Miss. 38; Beeman v. Leake County, 42 Miss. 237.

Assignments do not have to be recognized or accepted by the board of supervisors in a matter of this kind.

15 Corpus Juris, par. 255, also 66 and 67 thereunder.

Argued orally by Julian P. Alexander, for appellant, and by Jas. T. Crawley, for appellee.

OPINION

Griffith, J.

On the 6th day of June, 1928, Attala county purchased from Clifford Waterhouse a tractor, which was delivered to the county, and has been ever since used by it in road work; but, although still retaining and using the said machinery, the county has, by an order of its board of supervisors, made and entered on the 6th day of February, 1929, wholly refused to pay for said tractor, the order of disallowance stating no reason for said refusal.

The order of the said board of supervisors made and entered on its minutes at the June, 1928, term, and on the said 6th day of June, 1928, is in the following words and figures:

"This day there came on before the board of supervisors of Attala county, Mississippi, the matter of buying a tractor for the use and benefit of Supervisors District No. 2 (Two).

"It appears that due and legal notice of the intention of this board to buy a tractor for said beat has been given according to law as shown by proof of publication of said notice duly made and which is made a part and parcel of this order as fully as if herein set out at length.

"The time arrived for consideration of the said bids, the board proceeded to open the same, when and where among other bids came on to be considered the bid of Clifford Waterhouse, who offered to furnish a Bates Forty Crawler Tractor complete for the sum of four thousand five hundred dollars delivered, said tractor being as a whole unconditionally guaranteed, the track for two years, with six months free mechanical service on tractor.

"This being the best bid offered, it is ordered that the same be accepted, and it is further ordered that the said tractor be and it is hereby purchased from Clifford Waterhouse, under the above guarantee, at and for the purchase price of four thousand five hundred dollars."

On the back of a certified copy of the order of the board above set out is the following...