R. T. Clark & Co. v. Miller, State Revenue Agent

• Decision Date: 20 May 1929
• Docket Number: 27590
• Citation: 154 Miss. 233,122 So. 475
• Parties: R. T. CLARK & CO. et al. v. MILLER, STATE REVENUE AGENT
• Court: Mississippi Supreme Court

122 So. 475

154 Miss. 233

R. T. CLARK & CO. et al. v. MILLER, STATE REVENUE AGENT

No. 27590

Supreme Court of Mississippi

May 20, 1929

(Division B.)

1 CONTRACTS. Assertion by party under contract that he will be unable or will refuse to perform contract is not sufficient to constitute "breach."

Mere assertion of party to contract that he will be unable or will refuse to perform his contract is not sufficient to constitute a breach, but there must be distinct, unequivocal and absolute refusal to perform, treated and acted on as such by the other party to the contract.

2. CONTRACTS. There can be no breach of contract by agreement.

There can be no breach of a contract by agreement of parties.

3. PARTNERSHIP. Where partner undertakes to perform partnership contract and later quits and turns performance over to copartners, performance by latter is on behalf of all partners.

Where one partner undertakes to perform contract entered into by partnership and later quits and turns performance of contract over to copartners, performance by latter is on behalf of all partners.

4. LEVEES AND FLOOD CONTROL. Surety on levee construction contractors' bond was not liable for excess paid contractors above contract price.

Surety on bond of levee construction contractors was not liable for excess paid to contractors above contract price because of war conditions, since sureties on bonds for performance of contracts are not liable for moneys improperly paid to contractor.

5 EVIDENCE. Courts will take judicial notice of promulgation of executive orders and other matters in preparation for World War before United States participated therein.

Courts will take judicial notice of fact that, before United States became involved in World War, Council of National Defense and War Industries Board were created, many executive orders were promulgated by President preparatory to war, and that there was proclamation by President in which he took possession of and assumed control of, transportation systems of country for purposes of war and of other matters indicating that United States would become involved in war.

6. LEVEES AND FLOOD CONTROL. Where contractors, in 1916, entered into levee construction contract containing no stipulation excusing performance because of conditions brought about by war, such condition could not be implied.

Where contractors, in 1916, entered into levee construction contract containing no stipulation excusing performance because of conditions brought about by war, such condition could not be implied by courts.

7. LEVEES AND FLOOD CONTROL. Levee construction contractors held liable to levee board for excess paid contractors above contract price because of war conditions (Const. 1890 section 96).

Where levee construction contractors, because of prevailing crisis of labor and materials brought about by World War, believed it would be impossible for them to complete contract and asked levee board to increase contract price and board raised contract price fifty per cent contractors held liable to board, under Constitution 1890, section 96, for excess paid them above contract.

Division B

APPEAL from chancery court of Leflore county.

HON. HARVEY MCGEHEE, Chancellor.

Action by W. J. Miller, state revenue agent, against R. T. Clark & Co. and others. From a decree for plaintiff, defendants appeal. Reversed in part, and affirmed in part.

Decree reversed in part, and affirmed in part.

ANDERSON, J., gave statement of case.

Appellee filed his bill in the chancery court of Leflore county on behalf of the Yazoo-Mississippi Delta levee board against appellants, R. T. Clark & Co., a partnership composed of R. T. Clark, R. L. Cheshire, R. P. Harris, and C. H. Dulaney, levee construction contractors of the said levee district, and the United States Fidelity & Guaranty Company, surety on their contractors' bond, to recover from the contractors the sum of three hundred seventy-eight thousand three hundred thirty dollars, with interest, and from the Guaranty Company one hundred sixty thousand dollars of that amount, the penalty of the contractors' bond with interest, as damages suffered by the levee district, because of an alleged breach by the contractors of a levy construction contract theretofore entered into between the said R. T. Clark & Co. and the Yazoo-Mississippi Delta levee board. Copies of the contract and of the bond were made exhibits to the bill. A trial was had on bill, answers, and proofs, resulting in a final decree in favor of the appellee for the amounts sued for with interest. From that decree, appellants prosecute this appeal.

This is the second appearance of this case in the supreme court (Clark v. Miller, 142 Miss. 123, 105 So. 502). The former appeal was for the purpose of settling the principles of the cause; and the case as then presented, with the opinion of the court, should be considered in connection with this case in order to get the full meaning of the present decision. The bill first filed made R. T. Clark & Co., the Guaranty Company, and the members of the levee board who voted for the raise in the contract price of the levee work, defendants, and sought the same recovery against R. T. Clark & Co. and the Guaranty Company as in the present case, and, in addition, sought to hold the levee commissioners who voted for the increase in price and the sureties on their bonds liable for such increase in price. On the former appeal, the court held, among other things, that the bill was multifarious; that separate suits should have been brought against R. T. Clark & Co. and the Guaranty Company on the one hand, and the levee commissioners who voted for the increase, and the sureties on their bonds on the other hand; and on the remand of the case that was accordingly done. Substantially the same bill, as was originally filed against all the parties, was filed against the appellants in this case. The allegations of the bill are set out in the opinion of the court on the former appeal, and we deem it unnecessary to repeat them here.

The Guaranty Company, R. T. Clark, and R. P. Harris separately answered the bill denying that the contract had been breached by R. T. Clark & Co., and averred, in substance, that the participation of the United States in the World War had increased the cost of labor and materials going into the levee work to such an enormous extent as to render it impossible for the contractors to complete the work at the contract price without great loss, and for that reason the levee board, recognizing the emergency for the completion of the work, raised the contract price fifty per cent. Dulaney, one of the partners in the firm of R. T. Clark & Co., adopted the answer of the Guaranty Company; Cheshire, the other partner, did not answer.

There was no conflict in the material evidence; and we think a fair statement of the evidence in the case is contained in the brief of the Guaranty Company and that of the revenue agent, which follow in the order referred to:

"Clark Harris, Cheshire and Dulaney were not partners generally. Each had his outfit and was doing construction work with it. They got together to bid on this particular work with a view to dividing it up among themselves and each doing a part. They contracted with the Levee Board as R. T. Clark &amp Company. They were referred to in the bond as R. T. Clark, R. P. Harris, R. L. Cheshire and C. H. Dulaney, trading as R. T. Clark & Company, and they signed the bond R. T. Clark & Company, by R. T. Clark, by R. P. Harris, by R. L. Cheshire, by C. H. Dulaney, by L. C. Dulaney, Agent and Attorney-in-fact. At the time they bid on this work and got the contract Dulaney's outfit was at work on a contract in Louisiana and it was understood between them that he was to finish that work before coming on this. Clark, Harris and Cheshire moved their outfits on the job and started work the last of 1916 or early in 1917. The date could not be definitely fixed and the exact time is uncertain. The Engineer, Mr. Head, thought it was in February, 1917 which was probably correct in view of the fact that the first estimate allowed was on the 1st of March, 1917, but the actual date of beginning the work is not material. It was begun, at all events, before April 1, 1917 when the contract provided they were to begin if river conditions permitted. They were first hindered in their work by rains and high water. The United States having entered the war with Germany begun to draft their labor and left them without sufficient men to man their teams at times. War conditions were greatly increasing the cost of labor and material and the cost of doing the work. In the months of July, August, September, October, November and December, 1917, the board appears not to have had any money to pay them for their work and gave them estimates not payable until January 10, 1918, which the contractors had to raise money on their bank. In the winter of 1917-18 they had unusually cold weather and heavy snows and the flu epidemic hit their camps and they had further difficulty in carrying on their work. Dulaney, it seems, had on account of the increase of the cost of everything, met his Waterloo in Louisiana and his creditors had taken his outfit away from him and he had never been able to join his partners in this work. The others, Clark, Harris and Cheshire, had carried on in spite of everything. Cheshire's creditors, however, sometime during 1917 took his outfit away from him and his partners were deprived of his assistance. Clark and Harris thereafter carried on alone. Clark and Harris were evidently considered to be making the best progress possible under the conditions, for it does not appear that the engineer attempted to put any force account on them under Section...