Sparks v. Jasper County

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWoodson
Citation213 Mo. 218,112 S.W. 265
PartiesSPARKS v. JASPER COUNTY.
Decision Date26 June 1908
112 S.W. 265
213 Mo. 218
SPARKS
v.
JASPER COUNTY.
Supreme Court of Missouri.
June 26, 1908.

1. COUNTIES — CONTRACTS—EVIDENCE—SUFFICIENCY.

Evidence, in an action against a county on bridge contracts, held to support a finding that the bridge commissioner and bidders who accompanied him to a point half a mile from the site of the proposed bridge, where the contract was let, if at all, did not know that there were no other bidders at the site of the proposed bridge at which it had been advertised the contract would be let.

2. APPEAL AND ERROR—REVIEW — QUESTIONS OF FACT.

The findings of the trial court or jury on conflicting evidence of a substantial nature will not be disturbed by the Supreme Court.

3. COUNTIES—CONTRACTS—PLACE OF LETTING.

The letting of a county bridge contract at a spot half a mile from the bridge site, the contract having been advertised to be let at the site of the bridge, was not in compliance with the

[112 S.W. 266]

statute requiring public notice of the proposed letting of a contract, stating the time and place the contract will be let.

4. PAYMENT—APPROPRIATION BY DEBTOR.

A county bridge contractor, to whom the county had issued a warrant as part payment designating the bridges and the sum to be applied on each, was without power to change the application so made as to a part of the sum to be applied on a designated bridge and to apply it on another account.

5. ASSIGNMENTS—ORDERS ON DEBTOR—PAYMENT IN VIOLATION OF TERMS.

The mere fact that a bank took orders issued by a county bridge contractor on the county to a subcontractor, such orders providing that they should not be paid until the bridges were completed and accepted by the county surveyor, and furnished the subcontractor money with which to purchase material and employ labor, with the additional fact that the contractor may have known of that arrangement between the bank and the subcontractor, in no manner authorized the county to pay to the subcontractor or the bank the money called for in an order, except as therein stated, and if the county or the bank saw fit to pay an order before the subcontractor earned the money called for, it was its loss, and not the contractor's.

6. COUNTIES — CONTRACTS — ILLEGAL CONTRACTS.

Where a county, expressly granted the power to build bridges, accepted bridges and paid therefor, it could not recover the amount so paid on the ground that the contracts were illegally let without a return of the bridges, or an offer to return them.

7. SAME.

Where a county court is charged with the performance of certain duties in reference to a particular subject-matter, and undertakes in good faith to execute its powers, but fails to observe some requirement of law, so that its acts are irregular, such acts, if acquiesced in, are binding on the county as completely as if regular.

Lamm and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by J. H. Sparks against Jasper county. From the judgment, both parties appeal. Reversed and remanded, with directions.

The following is the opinion of WOODSON, J., in Division No. 1:


"These appeals result from an action brought by J. H. Sparks against Jasper county to recover judgment for balances claimed to be due on three separate contracts for the construction of bridges in said county and the finding and judgment of the court on the pleadings and evidence. Appeals were taken by both plaintiff and defendant and should have been brought to this court on one bill of exceptions and as one case, but were brought up on separate bills of exceptions and as separate cases. They should be heard together. The lower court found against plaintiff on the first count of his petition and for him on the second and third counts of his petition; found against defendant as to its various defenses, except on the first count of the petition; found against defendant on all its counterclaims except $22 overpayment; and rendered a judgment in favor of plaintiff for the balance of $____. A concise showing of the issues made by the pleadings is as follows: The amended petition is in three counts: (1) Count on contract for Blackberry bridge, $2,895, with credit for $1,-400. Balance claimed, $1,495. (2) Count on contract for Tuckahoe or Turkey Creek bridge and moving and rebuilding bridge on Jones creek, $2,990, and for extra concrete pillars at Jones creek, $65; credits $1,100 paid; and claims balance of $1,995. (3) Count on contract for three steel bridges— Turkey Creek range line bridge, sections 32 and 33; span south end of Terry's Ford bridge; bridge across Center creek at Reed's Station—$9,650; credits $5,400; and claims balance of $4,250.

"Amended answer: (1) Denies right to recover $1,495 on Blackberry bridge or part, for reason contract was not let as provided by law. Advertised to be let at bridge site, and, if let at all, was let one-half mile or more from site, and contract used was obtained by fraud committed by plaintiff and Grieb, bridge commissioner, on county and county court. (2) Denies right to recover $65 for concrete pillars at Jones Creek bridge. No contract for same and no order of county court for same. The payment of $1,100 by county court was on contract for Tuckahee and Jones Creek bridges, and not on extra. Plaintiff has no right to apply any part on this extra concrete pillar work. (3) Defense as to $2,900, by virtue of order of Sparks to David Miller for $3,500, upon which county has paid $600 to Central National Bank, assignee, of order with plaintiff's approval, and after completion of bridge contracts paid said bank $2,600, for which defendant is entitled to credit.

"Counterclaims and offsets by defendant: (1) Claim for $1,400 paid on Blackberry bridge for the same reasons for defending against first count for balance claimed on said bridge. (2) Claim for $2,471; $22 being amount overpaid as shown by contracts and payments on Carl Junction, Belleville, and Rucker's Ford bridges. The contract being $13,678, and the payment being $13,700. $2,449 of claim being for amount paid for extra span on Carl Junction bridge. Said span being built without any contract upon an order of the county court without any compensation being fixed. (3) Claim for $15,935; $4,850 for Terry's Ford bridge, $2,645 for Duenweg bridge, $4,745 for Hille's Ford bridge, $2,545 for Center Creek bridge, $1,250 additional 50 feet on Terry's Ford bridge.

"There is little or no dispute about the facts when you get into the evidence, so the questions before the court are mainly questions of law.

"1. The plaintiff insists that the finding of the court against him on the first count of the petition was error, and that the judgment rendered thereon should be reversed. The plaintiff's evidence upon this count of the petition tended to prove: That the contract

112 S.W. 267

for building the bridge was advertised to be let by public outcry at the site of the proposed bridge, and that on the day designated for letting the contract the road and bridge commissioner of the county, accompanied by plaintiff and three other prospective bidders for said bridge, went by rail to Carl Junction, and from there drove in a hack to a point about one-half mile from the site of said proposed bridge, and in plain view thereof; that they looked at the site from that distance but saw no one there; that said bridge commissioner announced then that he would then and there let the bridge contract by public outcry to the lowest bidder; that in good faith he proceeded to let the contract by outcry, and received several bids from the various parties who accompanied him, among whom was the plaintiff, who bid $2,895, which was the lowest bid made; and that the contract was then and there awarded to the plaintiff for said sum, which was afterwards approved by the county court, and, in pursuance thereof, the contract sued on was executed. The defendant's evidence tended to prove that, when the parties got to within about one-half mile of the site of the proposed bridge, they realized that they could not drive on to the site and return in time to catch their train, home-bound, at Carl Junction, and that they turned round and drove back to the junction without letting the contract or attempting to so do. The court gave an instruction for the plaintiff and defendant presenting their respective theories of the case. Under the evidence and the instructions, the court found the facts for the defendant and rendered judgment accordingly. This action of the court is assigned as error.

"The law requires public notice to be given of the proposed letting of contracts for building bridges, stating the time and place the contract will be let. The object of the notice is to inform prospective bidders of the proposed letting, so that they may meet there and make competitive bids for their construction. The court found, and justly so, we believe, that the bridge commissioner and the bidders who accompanied him did not know, nor could they testify positively, that there were no prospective bidders at the site of the proposed bridge on the day the contract was advertised to be let. These parties may have been in full view of the site, and they may not have seen any one at or near there. Yet that does not signify that there was no one there in fact, for they may have been there and still not observable from the point where plaintiff claims the contract was let, which was a half mile or more from the site. Prospective bidders might have been there, down in the creek, the banks of which might have obstructed the view. At any rate, this was a matter the trial court had a perfect right to take into consideration in passing upon the weight to be given to their testimony. In addition to what has just been said, the positive testimony of one of the party who drove out to the point where the contract was said to have been let is to the effect that the country between that point and the...

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17 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...with full knowledge of all the facts, in the absence of fraud or duress, cannot be recovered back. Sparks v. Jasper County, 212 Mo. 218, 112 S.W. 265; Baldwin v. Scott, 343 Mo. 915, 122 S.W. (2d) 890; Ferguson v. Butler County, 297 Mo. 20, 247 S.W. 795; Witmer v. Nichols, 320 Mo. 665, 8 S.W......
  • Osage Land Co. v. Kansas City, No. 39235.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1945
    ...993. (5) Distribution payments made on Park Fund Certificates. Series A-27, were not payments upon the judgment. Sparks v. Jasper County, 213 Mo. 218, 112 S.W. 265; Charter of Kansas City, Sec. 182; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 969; State ex rel. Tuller v. Seehorn, 246 Mo. 568, 151......
  • State v. Weatherby, No. 36350.
    • United States
    • United States State Supreme Court of Missouri
    • June 14, 1939
    ...Cap-Au-Gris Levee District, 219 Mo. 1, 35, "Third," 117 S.W. 1084, 1094, "Third;" and Sparks v. Jasper County (Banc), 213 Mo. 218, 237 (IV), 112 S.W. 265, 269(4), to the effect that municipal corporations may not recover the consideration paid under a contract fully exec......
  • City of Moberly v. Hogan, No. 25891.
    • United States
    • United States State Supreme Court of Missouri
    • September 16, 1927
    ...condemnation) no more of defendant's land. Counsel for defendant rely mainly upon the decision of this court in Sparks v. Jasper County, 213 Mo. 218, 112 S. W. 265. The sum of the contention is that the city cannot hold the land acquired under the agreement, and at the same time repudiate i......
  • Request a trial to view additional results
17 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...with full knowledge of all the facts, in the absence of fraud or duress, cannot be recovered back. Sparks v. Jasper County, 212 Mo. 218, 112 S.W. 265; Baldwin v. Scott, 343 Mo. 915, 122 S.W. (2d) 890; Ferguson v. Butler County, 297 Mo. 20, 247 S.W. 795; Witmer v. Nichols, 320 Mo. 665, 8 S.W......
  • Osage Land Co. v. Kansas City, No. 39235.
    • United States
    • United States State Supreme Court of Missouri
    • April 2, 1945
    ...993. (5) Distribution payments made on Park Fund Certificates. Series A-27, were not payments upon the judgment. Sparks v. Jasper County, 213 Mo. 218, 112 S.W. 265; Charter of Kansas City, Sec. 182; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 969; State ex rel. Tuller v. Seehorn, 246 Mo. 568, 151......
  • State v. Weatherby, No. 36350.
    • United States
    • United States State Supreme Court of Missouri
    • June 14, 1939
    ...Cap-Au-Gris Levee District, 219 Mo. 1, 35, "Third," 117 S.W. 1084, 1094, "Third;" and Sparks v. Jasper County (Banc), 213 Mo. 218, 237 (IV), 112 S.W. 265, 269(4), to the effect that municipal corporations may not recover the consideration paid under a contract fully exec......
  • City of Moberly v. Hogan, No. 25891.
    • United States
    • United States State Supreme Court of Missouri
    • September 16, 1927
    ...condemnation) no more of defendant's land. Counsel for defendant rely mainly upon the decision of this court in Sparks v. Jasper County, 213 Mo. 218, 112 S. W. 265. The sum of the contention is that the city cannot hold the land acquired under the agreement, and at the same time repudiate i......
  • Request a trial to view additional results

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