Town of Holbrook v. Girand

• Decision Date: 27 June 1938
• Docket Number: Civil 3973
• Citation: 80 P.2d 695,52 Ariz. 291
• Parties: TOWN OF HOLBROOK, Navajo County, Arizona, Appellant, v. JAMES B. GIRAND, Appellee
• Court: Arizona Supreme Court

80 P.2d 695

52 Ariz. 291

TOWN OF HOLBROOK, Navajo County, Arizona, Appellant, v. JAMES B. GIRAND, Appellee

Civil No. 3973

Supreme Court of Arizona

June 27, 1938

APPEAL from a judgment of the Superior Court of the County of Navajo. Levi S. Udall, Judge. Judgment affirmed.

Mr. W E. Ferguson, for Appellant.

Mr. H S. McCluskey and Mr. Guy Axline, for Appellee.

OPINION

LOCKWOOD, J.

This is an action by James B. Girand, hereinafter called plaintiff, against the town of Holbrook, a municipal corporation hereinafter called defendant. Judgment was rendered in favor of plaintiff for the sum of $1,200, and defendant appealed.

The facts as shown by the record may be stated as follows: The town of Holbrook, during the year 1933, became interested in securing funds from the Public Works Administration hereinafter called the PWA, to improve its water system. Learning of this fact, plaintiff, on October 9th of that year, wrote to the city clerk suggesting that he be employed to make the application and do the necessary engineering work. After various exchanges of letters and telegrams between plaintiff and the clerk, defendant made application to the PWA for a combined loan and grant of $50,000. The application and all necessary details therewith were conducted by plaintiff, and he also made the preliminary survey required by the PWA before such loan would be made. On December 3, 1935, the loan having by that time been approved, defendant notified plaintiff that his services in connection with the work were no longer required. Up to then he had been paid the sum of $137, which he claims was only for out-of-pocket expenses, but which defendant insists was the entire amount which he was to be paid under his agreement with it. On May 21, 1937, plaintiff brought this action, alleging that the defendant

"in consideration of the plaintiff performing the said services of the said Town of Holbrook, agreed to compensate the plaintiff in the manner provided for under the rules and regulations of the Federal Emergency Administration of Public Works, and out of Federal Emergency Administration of Public Works funds allocated to the Town of Holbrook, if the said funds were obtained and made available; which said usual and customary fee for this work under Federal Emergency Administration of Public Works was and is the sum of Two Thousand Dollars ($2,000.00)."

He further alleged that he had accepted the employment under the terms of the agreement and performed all of the services required thereby up to the time of his discharge, and alleged,

"That the services rendered by this plaintiff, as aforesaid, were rendered with the knowledge and consent and at the request of the Mayor and Common Council of the defendant, Town of Holbrook, and were accepted by said defendant; and the said defendant received the benefits of said work; and at no time was this plaintiff, during the rendering of said services, as aforesaid, advised by the said defendant, through any of its agents, servants or employees, or by its Mayor or Common Council, that the contract of employment was illegal or void, or that the defendant would not recognize the same as valid and binding; and that, by reason thereof, this plaintiff alleges that the defendant, in receiving the benefits of his services, thereby sanctioned and ratified said contract of employment; and that the sum due thereunder, as aforesaid, to this plaintiff from said defendant, is a legal charge and claim against said defendant."

The complaint concluded with the statement that demand had been made for compensation, as provided by the agreement, but that no payment had been made, and judgment was prayed for in the sum of $2,000.

Defendant set up, as a plea in bar, that sections 38 and 39 of ordinance number one of the Town of Holbrook read as follows:

"Sec. 38. The Town of Holbrook shall not be bound by any contract or become in any manner liable thereon, unless the same be made in writing, and duly authorized by the Council, with the approval of the Town Attorney, and signed by the Mayor and attested by the Town Clerk under the seal of the Town; but the Council may, by ordinance or resolution, or order, authorize any officer, committee or agent of the Town to bind the Town by contract not in writing for the payment of any sum of money not exceeding One Hundred Dollars ($100.00).

"Sec. 39. All claims against the Town shall be in writing and itemized and sworn to by the party presenting such claims, and must be certified to by the person ordering the goods or services, and filed with the Clerk on or before the regular meeting each month,"

and that no contract was ever entered into by defendant with plaintiff in the manner set forth in said ordinance. It then answered, denying that it made any agreement of the nature set up by plaintiff, and alleging that he was merely employed by it to do certain preliminary work, for which he had been paid the agreed price. The plea in bar was denied, and the case then proceeded to trial on its merits before the court without a jury. Many letters and telegrams were introduced and much evidence was offered regarding the amount and value of the services. The theory of counsel for the defendant at all times was that the action was upon an express contract; that the evidence showed clearly that if any such contract did exist, it was entered into in a manner contrary to that set forth in section 38, supra, and that no recovery could, therefore, be had.

The complaint unquestionably declared upon an express contract, but during the trial of the case the record shows there was considerable doubt in the minds of counsel for plaintiff and of the trial court as to whether the action should be tried as one upon contract or quantum meruit. The judgment, when considered in the light of the questions asked by the trial judge during the trial, leads decidedly to the conclusion that it was based upon a quantum meruit, and not upon the express contract set up by plaintiff.

Assuming for the sake of the argument, that the various documents and oral evidence show that defendant did agree to...