Tallman v. Lewis

• Decision Date: 01 May 1916
• Docket Number: 372
• Parties: TALLMAN v. LEWIS
• Court: Arkansas Supreme Court

186 S.W. 296

124 Ark. 6

TALLMAN v. LEWIS

No. 372

Supreme Court of Arkansas

May 1, 1916

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor affirmed.

Decree affirmed.

Eugene Lankford, for appellant.

1. The chancery court had no jurisdiction without a showing of fraud upon the county court. 44 Ark. 225; 47 Id. 80; 103 Id. 16; 105 Id. 212; 96 Id. 264; 48 Id. 544; 110 Id. 34; 113 Id 442; 112 Id. 91; 170 S.W. 40.

2. No fraud was shown.

3. Act 279, Acts 1909, can not be literally or strictly construed. 106 Ark. 518. If the law is properly construed defendants followed the law. 106 Ark. 39. Tallman was not a contractor with the board. He performed the services and was entitled to pay. Kirby's Digest, § 3534; 50 Ark. 83. Also to his necessary expenses.

4. Tallman was entitled to pay for his work regardless of construction of the Act of 1909. It was work outside his duty as commissioner. Thompson on Corporations, §§ 1200 1736, 1747; 96 Ark. 301; 86 Id. 613; 60 Id 99; 23 A. & E. Enc. L. (2 ed.) 392, 908.

5. The suit should be dismissed for want of equity. 55 Ark. 633; 92 Id. 63; 97 Id. 217; 11 Id. 378; 65 Id. 392; 52 Id. 150; 74 Id. 252; 8 Id. 259.

Geo. C. Lewis, for appellee.

1. The compensation was fixed by the act. A commissioner can not be interested in a contract with the district. 110 Ark. 421.

2. The court had jurisdiction. 114 Ark. 299; 33 Id. 704; 85 Id. 89.

3. Tallman's charges were unlawful, unauthorized and void. 110 Ark. 421. The decree is right.

OPINION

HART, J.

Geo C. Lewis, a land owner in Big Island Drainage District No. 8 of Arkansas County, instituted this action in the chancery court against Elliott Tallman, Louis Buerkle and J. W. Underwood, the commissioners of said drainage district. The object of the suit was to recover from them certain amounts of taxes collected from the land owners in the district which were alleged to have been illegally held by said commissioners and converted to their own use. The material facts are as follows:

The drainage district was duly organized in the fall of 1911, and the commissioners, after being appointed and qualifying as required by the statutes, proceeded upon the work of constructing the improvement provided for. The board let a contract at public bidding for the construction of the drainage ditch. The drainage district was organized under Act 279 of the Acts of 1909. It is conceded that the provisions of the act were complied with in the organization of the district.

Section 4 of the act provides that the board shall prepare plans for the improvement and shall procure estimates from competent engineers as to the cost thereof. It also provides that the board may employ such engineers and other agents as may be needful. No engineer was employed by the commissioners to supervise the construction of the drainage ditch. After the construction of the drainage ditch had been begun, it was deemed advisable by the board that some one should be employed to supervise the construction of it. In January, 1912, the board passed a resolution that E. Tallman, one of the commissioners, be constituted agent to see that all matters pertaining to and connected with the engineering work, construction, up-keep of the ditch, and such other matters connected with the ditch that he may deem would be of benefit to the same. The resolution further provided that he should be allowed $ 5.00 per day for each day spent at the work, together with all his expenses. Warrants were drawn in favor of Tallman in the sum of $ 2,014. These warrants were signed by himself as president of the board and by Louis Buerkle as secretary. The warrants were paid out of funds belonging to the district in the hands of the commissioners. $ 460 was paid him for attending meetings of the board. About $ 500 was paid him for the hire of a horse and buggy, at the rate of $ 3.00 per day. The balance was paid him for services in superintending the work of construction and up-keep of the ditch, at the rate of $ 5.00 per day.

Tallman testified that, while he furnished his own horse and buggy, he charged less therefor per day than he would have had to pay at a livery stable. He admitted that he was not an engineer, but stated that he understood how to measure the yardage of earth taken from the ditch and that his services were reasonably worth the sum of $ 5 per day to the district. Buerkle drew $ 938 for services and expenses. All of this was for attending meetings of the board except the sum of about $ 250. Underwood was only paid for services in attending the meetings of the board. The chancellor was of the opinion that the board had no authority under the statutes creating the drainage district to make a contract with one of its members. He was also of the opinion that a contract by implication could not arise between parties who are prohibited by law from entering into an express contract. It was agreed that the cause of action as to Buerkle be dismissed without prejudice. The court further found that the defendant Underwood had not drawn any funds from the district to which he was not entitled and the cause as to him was dismissed. The court found that the defendant Tallman had, without authority, drawn from the funds of the district and converted to his own use, the sum of $ 1,554.00.

A decree was therefore entered in accordance with the opinion and findings of the chancellor. The defendant Tallman alone has appealed, and for that reason we are only concerned with the correctness of the decision of the chancellor as to the issue involved in the suit against him. To reverse the decree in this case reliance is placed upon the decisions in Smith v. Dandridge, 98 Ark. 38, 135 S.W. 800; Spearman v. Texarkana, 58 Ark. 348, 24 S.W. 883; Frick v. Brinkley, 61 Ark. 397, 33 S.W. 527.

In the Dandridge and Spearman cases, there was no statute or ordinance prohibiting the execution of the contract and the rule announced permitted a recovery on the quantum meruit where the services contracted for and later performed were proper and necessary, and no unfairness was used or undue advantage taken, in obtaining the contract. In the Spearman case a physician was a member of the board of health and was employed by the board to render services on behalf of the city, which were outside his duties as a member of the board. It was held that while the physician could not enforce any contract made by him with the board of which he was a member, he was entitled to recover compensation for what his services were reasonably worth.

Dandridge was a member of the board of directors of a special school district. The district had entered into a contract for the erection of a school house and the other members of the board thought it necessary to employ some one to supervise the erection of the building. Dandridge was employed to do the work and performed it. The services which he performed were outside of the duties of his office as a director and he was not allowed to recover on the contract made. He was allowed to recover on a quantum meruit, it being shown that the amount allowed him for services was no more than his services were fairly and reasonably worth.

In the Frick case, a member of a town council was permitted to recover for the value of certain materials furnished the town, which were used by it. In that case the court called attention to a statute which provided that a member of the council could not be interested, directly or indirectly, in the profits of any contract or job for work or services to be performed for the corporation. The member of the council furnished certain drain tiles, which were used by the town. The court said that it was not necessarily or even reasonably to be considered that the furnishing of the drain tile was a contract for work or services to be performed, such as was contemplated by the statute. The decision in the case was based upon the rule that where no statute exists on the subject, a contract in which a municipal officer is interested, though against public policy, may be enforced as to the benefits already received by the city.

In each of those cases the contract was considered upon the ground of public policy alone. In such cases the contract, before it is performed, may be avoided by one of the parties because the other party at the time of its execution acted in a fiduciary capacity. When, however, it has been executed without objection and actual benefits have been received under it all parties acting in entire good faith, the law is maintained and the ends of justice subserved by allowing compensation on the quantum meruit or the quantum valebat for the reasonable value of the benefits received under it. There is a distinction to be made between a contract which is illegal because its execution requires the performance of an immoral or unlawful act, or transgresses an express statutory prohibition, and one wherein the act to be performed is lawful, but the contract is invalid upon the grounds of public policy alone. The general rule is that when a contract is expressly prohibited by law no court of justice will entertain an action upon it or upon any asserted rights growing out of it. The reason...