West Va. Coal Co. v. St. Louis, 28101.

• Decision Date: 05 March 1930
• Docket Number: No. 28101.,28101.
• Parties: WEST VIRGINIA COAL COMPANY OF MISSOURI, Appellant, v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

25 S.W.2d 466

WEST VIRGINIA COAL COMPANY OF MISSOURI, Appellant, v. CITY OF ST. LOUIS.

No. 28101.

Supreme Court of Missouri, Division One.

March 5, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED.

Case, Voyles & Stemmler for appellant.

(1) The Supply Commissioner is a charter officer of the city of St. Louis, invested by law with the authority to make contracts for supplies, in any amounts and for any periods, and may make such contracts without advertising for bids in cases of emergency, to be determined by the Board of Standardization. Charter, art. 15, sec. 29. This board, by charter provision, consists of the Comptroller, Supply Commissioner and president of the Board of Public Service. Charter, art. 15, sec. 28. (2) Sec. 2164, R.S. 1919, relating to municipal contracts, requiring a writing, dated and subscribed by the parties, does not require a formally executed instrument. California v. Telephone Co., 112 Mo. App. 722; Saleno v. Neosho, 127 Mo. 627; Strassheim v. Jerman, 56 Mo. 104; Dunn v. St. Louis, 7 Mo. App. 592; Aurora Water Co. v. Aurora, 129 Mo. 578. (3) In any event, the execution of an order for supplies by the Supply Commissioner, in his name as such officer, was the act of the city, and a sufficient compliance with the requirement that the contract be signed by the party to be charged. Chicago v. Peck, 196 Ill. 260; Fond du Lac v. Otto, 113 Wis. 39; Willett v. Young, 82 Iowa, 292; Barta School Dist. v. Mendell, 138 Ind. 188; Knight v. Clark, 48 N.J.L. 22; Warford v. Temple (Ky.), 73 S.W. 1024. Unless the Charter provisions in regard to purchase of supplies are mandatory in regard to advertising, a letting by competitive bids is not absolutely required. 3 McQuillin on Municipal Corporations (1 Ed.) sec. 1186, p. 2634; A.W. Devel Co. v. Village of Lynbrook, 210 N.Y. Supp. 183, l.c. 183; Lee v. City of Ames (Iowa), 203 N.W. 793. (4) By express provision of its charter, respondent has given its Supply Commissioner very broad powers. Charter, art. 15, sec. 29. He is a member of respondent's Board of Standardization, the duties of which are: To classify and standardize supplies and materials purchased, and prepare specifications for supplies to be purchased; but there is no provision specifying how this board shall function. Id. art. 15, sec. 28. (5) Where a contract is within its charter powers, a city may be estopped, even in its governmental capacity, where it has received the benefits, from setting up mere irregularities in the exercise of the powers conferred, and such contracts may be ratified. Reese on Ultra Vires, sec. 193, p. 258; 1 Dillon on Municipal Corporations (5 Ed.) sec. 204, p. 387; 3 Page on Contracts (2 Ed.) sec. 1792, p. 3078; 3 Municipal Corporations, McQuillin (2 Ed.) sec. 1185, p. 649; Supervisors v. Schenck, 72 U.S. 772, 18 L. Ed. 559; State ex rel. v. Milling Co., 156 Mo. 634; City of Unionville v. Martin, 95 Mo. App. 38; Union Depot v. St. Louis, 76 Mo. 396; California v. Telephone Co., 112 Mo. App. 728; Cole County v. Trust Co., 302 Mo. 222. (6) A city is always subject to principles of estoppel, and may be estopped, when acting within its charter powers, in its private, as contradistinguished from its governmental capacity, by the action of its officers and agents. Brewing Assn. v. St. Louis, 140 Mo. 419, 429; Reed v. City of Mexico, 101 Mo. App. 155; Cole County v. Trust Co., 302 Mo. 222, 240; Chicago v. Sexton, 115 Ill. 244; Boothe v. Fulton, 85 Mo. App. 18; Winona v. Botzet, 169 Fed. 321, 23 L.R.A. (N.S.) 216; L.R.A. 994; Des Moines v. Lighting Co., 110 C.C.A. 540, 188 Fed. 908; Diamond Power Co. v. West Point, 11 Ga. App. 533; Barnard v. Sangamon County, 190 Ill. 119; Illinois Trust & Sav. Bank v. Arkansas City, 22 C.C.A. 171, 76 Fed. 271, 34 L.R.A. 525; City of Conyers v. Kirk & Co., 78 Ga. 483; Messersmith v. City of Buffalo, 138 App. Div. 432; Oakes Mfg. Co. v. New York, 206 N.Y. 221, 42 L.R.A. (N.S.) 290.

Julius T. Muench and Oliver Senti for respondent.

(1) A contract of the city for supplies in an amount in excess of $500 must be let on competitive bids, and, except in case of an emergency determined by the Board of Standardization, by advertising for proposals therefor. Charter, art. 15, sec. 29. (a) Such contracts must be executed in the name of the city and countersigned by the Comptroller. Charter, art. 25, sec. 9. (b) Unless a contract of the city is made in conformity with the Charter requirements indicated above it is null and void. Sec. 2164, R.S. 1919; Heidelberg v. St. Francois County, 100 Mo. 69; Hillside Security Co. v. Minter, 300 Mo. 380; Unionville v. Martin, 95 Mo. App. 28; Mullins v. Kansas City, 268 Mo. 444; Cotter v. Kansas City, 251 Mo. 224; State ex rel. v. Dierkes, 214 Mo. 590. (c) The only cases in this State where an estoppel has been successfully invoked against a municipality are those in which the municipality has been guilty of laches and has for a long time pursued a misleading course of conduct in reference to the matter. Mullins v. Kansas City, 268 Mo. 444. (d) The city promptly challenged the authority of the Supply Commissioner to give the appellant the order on which this suit is based. (2) Appellant does not claim to have given the city any bond for the faithful performance of a contract. The city is not bound unless appellant gives such a bond. Sec. 271, Revised Code of St. Louis 1914. (3) Where the parties have not followed the prescribed procedure leading up to the making of a contract itself, the municipality has no power to make such contract. Hillside Securities Co. v. Minter, 300 Mo. 397.

LINDSAY, C.

This is an action for damages sought to be recovered on the ground that defendant city breached a contract made with plaintiff, for the purchase of 15,000 tons of coal screenings at $6.50 per ton, for the city waterworks. The cause was tried to the court and judgment went in favor of defendant. The plaintiff submitted its case upon an agreed statement of facts, and then defendant's offered demurrer being denied, the city submitted its defense upon an additional agreed statement of facts. These statements were taken subject to objections as to their competency, respectively reserved and made by the parties. The city owns and operates its waterworks system, and in connection therewith operates a pumping plant — at Bissel's Point, Baden, and the Chain of Rocks on the Mississippi River — and required and used large quantities of coal and coal screenings.

The various acts entering into the transaction as shown in the agreed statement, in their chronological order, are as follows:

On the 1st day of September, 1920, the Assistant and Acting Water Commissioner for the city, by letter, submitted to the Supply Commissioner of the city requisitions covering coal required for the operation of the waterworks for the month of September, 1920. The requirements stated were, for Baden, 2300 tons, more or less; for Bissel's Point, 2300 tons, more or less, and for the Chain of Rocks 2,000 tons, more or less. The Assistant and Acting Water Commissioner stated in said letter, that the contract of the city with the St. Clair Coal & Mining Company had expired on the day before; that the present available supply of coal at the waterworks was sufficient to operate for not more than ten days, and that it was urgent that daily shipment of coal at the rate of six cars per day be renewed with the least possible delay.

On the 3rd day of September, 1920, the Supply Commissioner called up the Comptroller of the city on the telephone, and stated to him that Sunday and Labor Day were coming on; that there was a shortage of coal screenings at the waterworks; that it was imperative that they purchase coal right away, and that he had an opportunity to buy 15,000 tons of coal screenings from the West Virginia Coal Company, at $6.50 per ton. The Comptroller replied that the price was almost prohibitive, but, if the situation was as serious as the Supply Commissioner said it was, to use his own best judgment, and whatever he did would be satisfactory to him, the Comptroller. On the 4th day of September, the Supply Commissioner of the city transmitted to the plaintiff by letter the following order or communication, addressed to the plaintiff:

"This is your authority to proceed as per verbal conversation of today and yesterday to place at the Water Works 15,000 tons of 1½" screenings at $6.50 per ton, f.o.b. mines... . Please proceed as promptly as possible, and advise me personally of the deliveries you are making. JOSEPH B. THOMAS, Supply Commissioner."

Also on the 4th day of September, the plaintiff transmitted to the Supply Commissioner its "Acknowledgment of Order" of coal, for account of the city for shipment to the Water Works, stating it as "15,000 tons SCRGS. 1½ f.o.b. mines at $6.50." This acknowledgment among other things under the head of "Remarks," contained the following: "The order has been accepted and entered subject to the following conditions of sale. — This company shall not be liable for contingencies of transportation or mining. Orders acknowledged subject to our ability to get the proper equipment to go the route."

On the 7th day of September, 1920, the Water Commissioner learned of the order aforesaid, and on that day informed the Supply Commissioner that the water department would not accept any shipments under that order.

The first cars of coal shipped by the plaintiff under the order, reached the waterworks on the 8th day of September, 1920, and the water department refused to accept the same. Cars of coal continued to arrive until the 15th day of September, 1920, but no coal was accepted until the 15th day of September. On that day, the Supply Commissioner at the direction of the Mayor of the city delivered to plaintiff a letter of that date saying: "The order given you on September 4th, 1920, for 15,000 tons of screenings for the Water Works is hereby cancelled."

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