Webb v. Hillsborough County

• Decision Date: 30 September 1935
• Court: Florida Supreme Court
• Parties: WEBB et al. v. Hillsborough County [*]

175 So. 874

128 Fla. 471

WEBB et al. v. Hillsborough County ^[*]

Florida Supreme Court, Division B.

September 30, 1935

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by C. E. Webb and others, copartners as Cone Brothers, for the use and benefit of C. E. Webb, against Hillsborough County, a political subdivision of the State of Florida. Judgment for defendant, and plaintiffs bring error.

Reversed.

See also, Gulf Life Ins. Co. v. Hillsborough County (Fla.) 176 So. 72.

BROWN J., dissenting.

TERRELL and BUFORD, JJ., dissenting in part on petition for rehearing.

On Petition for Rehearing.

COUNSEL

Hampton, Bull & Crom, of Tampa, for plaintiffs in error.

J. B Sutton, H. C. Tillman, and W. F. Himes, all of Tampa, for defendant in error.

Kay, Adams, Ragland & Kurz, W. E. Kay, Thos. B. Adams, F. P. Fleming, and J. S. Diver, all of Jacksonville, and Edwin Brobston, of Tampa, amici curiae.

OPINION

TERRELL Justice.

This action was instituted by plaintiffs in error, as plaintiffs below, against defendant in error, as defendant below, to recover damages for the breach of a contract to construct a public road. The declaration in substance alleges that on February 27, 1925, Hillsborough county entered into a written contract with Cone Brothers, a copartnership composed of J. L. and W. L. Cone, to grade, pave, curb, and improve part of a public road in Hillsborough county known as Cypress street, the said road being outside the limits of a municipality.

It is also alleged that the contract was executed pursuant to chapter 9316, Acts 1923, and that payment for the labor and material expended in improving said road was made in certificates of indebtedness against the abutting property, that the said road was completed according to the terms of the contract, that it was accepted by the county, and the board of county commissioners of the county passed a resolution by which it was determined that the entire cost of improving said road was $206,131.09, which plaintiffs agreed was a reasonable value of the labor and material used by them in improving it.

It is also alleged that pursuant to the determination of the cost of said road the county commissioners issued certificates of indebtedness against the abutting property in the sum of $206,131.09, that said certificates were delivered to the contractors, and that subsequently $15,041.69 was paid on the principal thereof, leaving due thereon the sum of $191,089.40, none of which has ever been paid, and that the county of Hillsborough is now enjoying and using the said improvements; that said certificates were payable in five years and were duly assigned to C. E. Webb.

It is also alleged that subsequent to the making of these improvements and the issuing of the certificates, chapter 9316, Acts 1923, under which they were issued, was held invalid and inoperative by the Supreme Court of this state ( Hillsborough County et al. v. Temple Terrace Assets Co., Inc., 111 Fla. 368, 149 So. 473), and that by reason of that decision all certificates so issued to the plaintiffs in payment of said road are void and unenforceable and are worthless to the plaintiff. The declaration also challenges said certificates on the ground that two-thirds of the abutting owners on Cypress street did not sign the petition asking for the improvement.

It is further alleged that prior to the institution of this action plaintiffs made demand in writing for payment of the balance due on said certificates and offered to surrender them to the county, and being refused this action was instituted. There is attached to the declaration a bill of particulars setting up the total value of the material and labor furnished for grading, curbing, rock base, laying asphalt blocks, concrete pipe, catch basins, engineer's cost, overhead, and profit. Common counts for money payable, money found to be due, and for an account stated from defendants to plaintiffs were included in the declaration.

To the declaration defendants filed a demurrer in which they allege that it fails to state a cause of action, that the contract relied on is not binding, that the claim asserted was not presented to the board of county commissioners within one year from the date it became due, that the declaration shows on its face that plaintiffs have a valid lien upon all properties abutting on Cypress street owned by those who signed the petition under which the paving was done, that the law under which the contract was executed is null and void, that said contract was entered into in violation of the budgetary laws of Florida, and that the moneys expended in paving Cypress street were not expended for a public purpose but for the benefit of private individuals.

The demurrer to the declaration was sustained; the lower court holding that chapter 9316, Acts 1923, having been declared invalid, there can be no mistake of law or fact which can entail liability against the county under the allegations of the declaration nor can liability be grounded on the general provisions of law prescribing the powers and duties of county commissioners in the matter of the construction and maintenance of roads. In the order sustaining the demurrer leave was granted to amend, but plaintiffs declined and prosecuted the instant writ of error to this court.

Out of the foregoing facts the first question with which we are confronted is whether or not chapter 9316, Acts 1923, having been declared invalid and the certificates of indebtedness issued thereunder nonenforceable, has plaintiff in error any right of action against Hillsborough county for labor and materials furnished in the execution of its contract.

Plaintiff in error contends for an affirmative answer to this question and relies on Harwell v. Hillsborough County, 111 Fla. 361, 149 So. 547, 548, the pertinent part of which is as follows:

'A majority of the court hold that under the authorities hereinafter cited where a county enters into a contract for work of a public character which it is fully authorized to pay for, and the contract has been executed and performed according to its terms, and the county has acknowledged its indebtedness under the contract by issuing its certificates of indebtedness to pay for the work done and material furnished, and is actually enjoying the fruits of the contractor's expenditures for labor and materials, which expenditures were made in good faith on the strength of the county's contract, that included an assumption of obligation to provide a means of payment according to the contract, after its actual execution, that recovery may be had against the county on a quantum meruit basis for the value of the work done and materials furnished to and accepted by the county under such circumstances, where the county finds that it is unable to deliver valid certificates to pay for the work under the express contract.'

In Harwell v. Hillsborough County the certificates involved were issued pursuant to contracts let and executed under chapter 10145, Acts 1925, which was in all material respects identical with chapter 9316, Acts 1923. The certificates involved in Harwell v. Hillsborough County were held to be invalid because of procedural defects; that is to say, that the requisite two-thirds of the owners of property abutting on the public road petitioned to be paved did not sign the petition therefor. The certificates in the instant case were adjudged invalid because of the invalidity of the act under which they were issued (chapter 9316, Acts 1923). They were also challenged on the same grounds as those in Harwell v. Hillsborough County were challenged.

Defendant in error contends that in view of the invalidity of chapter 9316, under which the certificates and contracts under review were executed, both were void ab initio; that the contracts were ultra vires; that the county was without authority to make them; that plaintiffs in error were on notice of this infirmity; and that consequently the fact that the contracts were performed and the county received material benefits therefrom in no way imposes liability on it.

We recognize the rule with reference to the nonenforceability of ultra vires contracts, including implied contracts growing out of them, discussed in City of Tulsa v. Malloy et al., 104 Okl. 281, 231 P. 256; Western Paint & Chemical Co. v. Board of Commissioners of Garfield County, 161 Okl. 300, 18 P.2d 888; Bartlett v. City of Lowell, 201 Mass. 151, 87 N.E. 195; Floyd County v. Owego Bridge Co., 143 Ky. 693, 137 S.W. 237; Buchanan v. City of Litchfield, 102 U.S. (12 Otto) 278, 26 L.Ed. 138; McQuillin, Municipal Corporations, vol. 3, par. 1565 (2d Ed.); Donnelley's Law of Public Contracts, § 108; and many others.

While no rele of law is better settled than this one, like all others it has its exceptions or modifications which are as well recognized as the rule itself. This court approved such an exception in Harwell v. Hillsborough County, supra, the effect of which was that if a county enters into a contract for a public work which it is authorized to construct and the contract is executed in good faith, after which it develops that the county cannot issue lawful certificates in payment therefor as contemplated when made, if the county is in the enjoyment of the fruits of the contractor's expenditure he may recover in an action against the county on a quantum meruit for the value of the work done and the materials furnished.

Appellee further contends that the rule applied in Harwell v Hillsborough County, supra, cannot control the case at bar because chapter 9316, Acts 1923, under which the certificates were issued and the contract made, was not only void in its inception, but it in terms made the abutting...