Sparks v. Jasper County

• Decision Date: 26 June 1908
• Parties: J. H. SPARKS v. JASPER COUNTY, Appellant; and J. H. SPARKS, Appellant, v. JASPER COUNTY
• Court: Missouri Supreme Court

112 S.W. 265

213 Mo. 218

J. H. SPARKS v. JASPER COUNTY, Appellant; and J. H. SPARKS, Appellant, v. JASPER COUNTY

Supreme Court of Missouri

June 26, 1908

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Reversed and remanded (with directions).

Thomas & Hackney for Sparks, appellant and respondent.

(1) Plaintiff was entitled to the $ 65 for concrete pillars put in the Jones Creek bridge in order that the bridge might be set out of and above the water. It was shown by the evidence that at the time of making the contract for the removal of the bridge to Jones Creek, it was thought that the legs of the bridge were sufficiently long to put it above the water but on getting the bridge to Jones Creek it was found that to rebuild the bridge as contemplated would set it under water. Hence, the bridge commissioner under the direction of the county court ordered the construction of concrete pillars which were shown to be of the reasonable value of $ 65, and the plaintiff was entitled to this sum, and having received it and given credit on this account out of the $ 1,100, is entitled to recover the balance due on the bridge contract. Bryson v. Johnson County, 100 Mo. 76; Beach on Corporations, sec. 1079. The building of these concrete pillars became necessary to meet an unforeseen exigency, the same as in Bryson v. Johnson County, supra. (2) The payment by the county court of the $ 2,900 to the Central National Bank as assignee of the Miller order was without authority of law. It was admitted that Miller never built the bridges but abandoned the work as soon as the order was obtained. Sparks was compelled by the county court to complete the work, which he did at an expense of $ 4,100; whereas, Miller should have done this work for $ 3,500 under his contract with Sparks. The county court had no power to accept this order and there was no acceptance. But even had it had the power to accept and even had the order been accepted in fact, yet the failure of Miller to perform the contract prevented the county court from paying the order. Crowell v. Plant, 53 Mo. 145. Sparks had the right to revoke the order at any time before Miller should complete the bridges and the order should be paid in full by the county court; and the written and oral notice served by Sparks on the county court notifying them not to pay this order effectually nullified the order. Dickson v. Coates, 79 Mo. 250; Albers v Bank, 85 Mo. 173; 1 Morse on Banking (3 Ed.), sec. 398; Banschaack on Bank Checks, p. 83; Boon on Banking, 198; Bank v. Millard, 10 Wall. 152. (3) Defendant was not entitled to recover back from the plaintiff any moneys theretofore paid him on any bridges built. The contracts for the building of these bridges had been fully performed on both sides long prior to the institution of this suit. These contracts were shown to be fair, the bridges substantially built and well worth the money, and kept and used by the county and the public. There was no tender of the bridges to the plaintiff nor offer to restore them to him; and the amended answer did not plead any offer to restore or return the bridges. In such a case, regardless of the question of irregularity of the contract, there can be no recovery by the county of the money thus paid for the bridges. Frick v. Town of Brinkley, 61 Ark. 397; 20 Am. and Eng. Ency. Law (2 Ed.), 1180; Riverside County v. Yawman & Erbe Mfg. Co., 86 P. 900; Long v. Boone County, 36 Iowa 60; Inhabitants of Schell City v. Rumsey Mfg. Co., 39 Mo.App. 364. The obligation to do justice rests upon all persons, natural and artificial, and if the county obtains money or property of others without authority, the law, independent of any statute, will compel restitution or compensation. Chapman v. County of Douglas, 107 U.S. 355; Marsh v. Fulton Co., 10 Wall. 684; Louisiana v. Wood, 102 U.S. 294; Hitchcock v. Galveston, 96 U.S. 350. (4) The judgment rendered in the Bradley case was without effect on the rights of plaintiff. The action was not instituted by Bradley and the other citizens until two of the bridges were practically completed and the other two were in process of construction. No injunction was asked or obtained suspending operations under the contracts. The defendants entered their appearance without service or process and urged a speedy trial of the case, but the plaintiffs delayed the trial almost a year after the institution of the suit. In the meantime the county court required the contractor, Sparks, to go ahead with the construction of the bridges. This he did and the bridges were completed and paid for long before the trial of the case. The mere institution of this suit would have been no justification to Sparks for delay in the performance of his contracts. The citizens had ample opportunity to suspend the work by suing out an injunction but they saw fit not to sue out this injunction and with the knowledge that the bridges were being constructed, allowed the work to go on to completion. They, as well as other tax-payers, and the county itself, thus waived their right to question these contracts; and the decree of the trial court, which showed that the contracts had been performed prior to its rendition, was evidence of its own inability to affect the contracts. (5) The only object of the advertisement of the commissioner for bids was to notify prospective bidders of the proposed letting and of the time and place thereof so that competition might be had. When the commissioner and all the prospective bidders assembled at a point within half a mile of the site of the bridge and in plain view thereof, and saw that there were no other persons at the site of the bridge, and that there would be no other bidders in attendance at the letting, and the contract was then let in good faith by public outcry, this was a substantial compliance with the notice. Under these circumstances the parties were "at the site" of the proposed bridge. The words "at the site" contained in the notice should be construed to mean "near the site" and should not be construed to mean "in" or "on" the site. Century Dictionary, "At;" Webster's Dictionary, "At;" Standard Dictionary, "At;" Purifoy v. Railroad, 108 N.C. 100; Minter v. State, 104 Ga. 753; O'Conner v. Nodel, 117 Ala. 595; Parke's Appeal, 64 Pa. St. 137; Williams v. Railroad, 82 Tex. 559; Howard v. Fulton, 79 Tex. 236; Railroad v. Manning, 70 Ill.App. 242; Railroad v. Railroad, 31 N.J.Eq. 486; State v. Camden, 38 N. J. L. 299; Railroad v. Beeler, 90 Tenn. 548.

McReynolds & Halliburton for Jasper county, appellant and respondent.

(1) Plaintiff is not entitled to recover $ 65 for the concrete pillars on Jones Creek bridge. This has not been paid. The record shows the $ 1,100 was paid on contract and the suit is on the contract. There was no contract for the concrete pillars. It is a well-settled rule that in a suit on contract plaintiff cannot recover on quantum meruit. Heidelberg v St. Francois Co., 100 Mo. 69; Anderson v. Ripley County, 181 Mo. 46; Reed v. Mexico, 101 Mo.App. 161; King v. Ins. Co., 101 Mo.App. 171; City of Unionville v. Martin, 95 Mo.App. 38; Miller v. Douglas, 102 S.W. 996. (2) Plaintiff is not entitled to recover the $ 1,495 on Blackberry bridge, for the reason that the contract was fraudulent, in that it was not let as advertised and as required by law, and this with the active participation of plaintiff. (a) On the question of sale under a deed of trust it is held that to pass a perfect title, the sale must be at the place required by the deed of trust. Stewart v. Brown, 112 Mo. 171; Schanewerk v. Hoberecht, 117 Mo. 22. (b) It is held that a sale under execution must be made at the time and place advertised or it is void. Bank v. Evans, 51 Mo. 35; Ladd v. Shippie, 57 Mo. 523. (c) A sale made at sitting of county court instead of circuit court is void. Roberts v. Nelson, 86 Mo. 21. (d) This contract for construction of Blackberry bridge was illegal and void, being made in violation of the statute. And the courts will not aid plaintiff to enforce it. Conner v. Black, 119 Mo. 126. (e) And it is immaterial whether the illegality is shown by the contract or established by evidence aliunde. Sumner v. Summers, 54 Mo. 340; Bick v. Seal, 45 Mo.App. 475. (f) A conveyance (same rule will apply to contract), to be fraudulent, need not originate in a premeditated design to commit a positive fraud or to injure others. Many acts, from their tendency to deceive others or from their injurious consequences to the public, are prohibited by the law as being within the same reason as actual fraud. Reed v. Pelleiter, 28 Mo. 175; Wait on Fraudulent Conveyances, sec. 9, note 2; Bank v. Harrison, 57 Mo. 508; Bishop on Contracts, 456-7-8; Karnes v. Ins. Co., 144 Mo. 413. (3) Plaintiff is not entitled to recover the $ 2,900 paid the Central National Bank on order to Miller. A proper construction of that order does not require that Miller should build all the bridges. This order was for value assigned to the bank, filed with county court, $ 600 paid thereon by defendant, and such payment approved by Sparks. The order, if it will bear two constructions, defendant having acted thereon, the construction most favorable to defendant and should be given it. Nordyke & Norman Co. v. Kehlor, 155 Mo. 643; Clo. Co. v. Sharpe, 83 Mo.App. 385. This order can be held valid and binding on Sparks without doing violence to its terms or to any settled principle of law. Glass Co. v. O'Malley, 67 Mo.App. 639; Rdijeceit v. Andrews, 63 Central Law Journal 285. (4) Defendant's claim to recover $ 1,400 paid on the Blackberry bridge is based on the same proposition that prevents plaintiff's recovering the balance of $ 1,495 on that contract, to-wit: The contract was obtained by the commission of a fraud on the county court and...