Wolcott v. Lawrence Cnty.

• Decision Date: 31 January 1858
• Citation: 26 Mo. 272
• Parties: WOLCOTT, Plaintiff in Error, v. LAWRENCE COUNTY, Defendant in Error.
• Court: Missouri Supreme Court

26 Mo. 272

WOLCOTT, Plaintiff in Error,

v.LAWRENCE COUNTY, Defendant in Error.

Supreme Court of Missouri.

January Term, 1858.

1. In erecting county buildings the county courts must strictly pursue the provisions of the act concerning county buildings. (R. C. 1845, p. 286; R. C. 1855, p. 498.)

2. No recovery can be had against a county on a quantum meruit for erecting a court-house for the county; a recovery, if had at all, must be had upon a special contract entered into in conformity to the provisions of the act providing for erecting county buildings. (R. C. 1845, p. 286.)

Error to Lawrence Circuit Court.

The error complained of in this case is the sustaining of a demurrer to the following petition: “Plaintiff states that said county of Lawrence owes him the sum of $1883.25, the balance due him for building a court-house on the public square in the town of Mount Vernon, in said county of Lawrence, the permanent seat of justice of said county, and furnishing the materials for the building said house; that he built said house under the direction and supervising control of Samuel M. Anderson, superintendent, and of the county court of said county; and at the May term of said county court, he delivered said house, fully completed, to said county court for the use of said county, at the special request of said county, who then and there promised to pay plaintiff what it was reasonably worth to furnish the materials and build said house, whereby the said county became liable to plaintiff to pay him what it was reasonably worth to furnish the materials and build said court-house as aforesaid. Plaintiff says that the furnishing the said materials and building said house was reasonably worth the sum of $7629.90; that said county of Lawrence has paid at different times to plaintiff therefor sums of money amounting in the aggregate to the sum of $5,745.75; that the said balance amounting to the said sum of $1,883.95 is yet due plaintiff; that said county neglects and refuses to pay plaintiff said balance. Plaintiff therefore prays judgment for the said sum of $1,883.25 against said county of Lawrence, and as in duty bound, &c.

And plaintiff further states that at the time he delivered said house to said county court, as before stated, the said county court, on behalf of said county and plaintiff, entered into an agreement of record to refer the question of how much ought to be allowed plaintiff as the balance for building said house to two men from each municipal township in said county, as will fully appear by reference to a copy of said record of agreement herewith filed; that at the time and place named in said submission all the arbitrators named in said submission except two met, and the justices of said county court and said plaintiff also being present, it was then and there agreed between said justices of said court and plaintiff that the arbitrators then and there present should proceed to determine what the said plaintiff ought to have as the balance for furnishing materials and building said house; and plaintiff further avers that said arbitrators then so met as aforesaid, neither party requiring them to be sworn, did then and there hear the proofs upon the said question, and did then and there render their award in favor of plaintiff, whereby they did then and there allow plaintiff the sum of $950; which said award the said court afterwards refused and still refuses to abide by; and, although often requested to abide by said award and grant a warrant on the county treasurer of said county for the amount so awarded as aforesaid, the said court refused and still refuses to do so, whereby the said county of Lawrence became liable to plaintiff for the said sum of $950, so awarded as aforesaid; a copy of which said award is herewith filed and made an exhibit in this cause. Plaintiff states that said court, in behalf of said county, made and entered into said agreement to submit said question to arbitrators as aforesaid, in consideration of plaintiff's delivering to them the said house as aforesaid. Plaintiff prays judgment for the said sum of $950, so awarded as aforesaid, together with all legal interest thereon, and as in duty,” &c.

F. P. Wright, for plaintiff in error.

I. The county courts are agents of the counties. The plaintiff under contract with the county court furnished materials and built the court-house. It has been received without objection. The people of the county are using, occupying and enjoying it. It is a well settled rule of law, as well as of justice, that where an agent does an act for the use of his principal, and the principal enjoys the benefits and fruits of the act, it is too late for him to say that the act was not legal or was not by his authority. The principal may ratify the unauthorized act of the agent. The county, acting through the county court, may do the same. (Ruggles v. Washington County, 3 Mo. 348.)

II. The suit is properly brought against the county, the work having been done for the county, and accepted and enjoyed by the county. (5 Indiana, 31.) The county, having accepted the work, would be liable on an implied promise to pay as much as the work was really worth. (Lomax v. Baily, 7 Black. 577.) In the present case there was an express promise to pay.

Ewing, for defendant in error.

I. For general purposes and with respect to many things the county court has a large discretion. As to the subject matter of this proceeding, nothing is left to its discretion. (R. C. 1845, p. 287.) The statutory authority must be pursued. It is apparent from the petition that none of the requirements of the...