Woolfolk v. Randolph Cnty.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 501
• Parties: WOOLFOLK, Appellant, v. RANDOLPH COUNTY.
• Court: Missouri Supreme Court

83 Mo. 501

WOOLFOLK, Appellant,

v.RANDOLPH COUNTY.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Monroe Circuit Court.--HON. THEO. BRACE, Judge.

AFFIRMED.

Hollis & Wiley and Martin & Priest for appellant.

Respondent was authorized to compromise township indebtedness. Laws 1875, p. 23, §§ 1 to 10; Laws 1877, p. 12, § 11. This is a power conferred to do a certain thing; the means necessary to accomplish the work, if not specifically laid down in the act, are necessarily implied. Unless the mode is given the courts use their discretion. Aull v. City of Lexington, 18 Mo. 401; Page v. St. Louis, 20 Mo. 136. The power given by Revised Statutes, section 5358, to appoint an agent applies to these cases, and it was in force at the time. Authority is given by section 1 of the act of 1877, to enter into a contract for the compromise, purchase, etc., of these bonds, and this necessarily requires the intervention of an agent and the right to appoint appellant is beyond doubt. 1 Dillon on Mun. Corp., secs. 55, 58; New London v. Brainard, 22 Conn. 552; Stitson v. Kemp, 13 Mass. 272; Railroad Co. v. Marion Co., 36 Mo. 295; Walker v. Linn Co., 72 Mo. 650, and authorities cited. A written contract signed by appellant was not necessary. This is not a suit on contract. It is for labor, and the irregularities of the contract is no defence. R. S., sec. 1218; Copp v. St. Louis Co., 34 Mo. 383; Boggs v. Caldwell Co., 28 Mo. 586.

A. H. Waller for respondent.

(1) A general judgment cannot be rendered against Randolph county in this case. The county court of said county in compromising the indebtedness of said townships did not act as agent for said county. In so doing it was simply performing a duty devolved upon it by the laws of the state, and could exercise such powers only as the legislature invested it with. Ray County v. Bently, 49 Mo. 236; Holt County v. Harmon, 59 Mo. 165. The legislature conferred no power on the county court to bind Randolph county to pay the expenses of compromising the indebtedness of Sugar Creek township, nor could it have done so, and said county is no more held to pay such expense than it is to pay the original indebtedness of said township. If appellant seeks to obtain a general judgment against said county (and such is his prayer) he is asking the enforcement of a claim against a party in no wise bound to him. If he means to have his judgment made special against the township of Sugar Creek, or so rendered as to bind that subdivision of the county only, then his petition is insufficient for that purpose. (2) There is no provision in any of the several acts authorizing counties and towns to compromise their indebtedness, in force at the time of appellant's alleged employment, empowering county or municipal authorities to employ and pay such agent, as appellant is alleged to have been. See Laws of 1875, p. 23 and following; also Laws of 1877, pp. 197 and 198. The contract was, therefore, null and void, having been made without express authority of law. Con. 1875, art. 4, sec. 48; R. S., sec. 5360. (3) But, if the services of an agent were necessary, such agent was provided by law. Laws 1875, p. 23, sec. 1. The county court had no right to appoint an agent of its own choosing, and its act was null and void. Saline Co. v. Wilson, 61 Mo. 237; State v. Shortridge, 56 Mo. 126. (4) No legal contract is averred or relied upon in the petition and it is insufficient for that reason. R. S., sec. 5360. It is not contended that any such contract as is required by section 5360 was ever made and no recovery can be had for that reason. Walcott v. Lawrence County, 26 Mo. 272.

RAY, J.

This is a proceeding begun by appellant in the Randolph circuit court and taken by change of venue to the circuit court of Monroe county. The case was determined upon a demurrer to plaintiff's amended petition which alleged in substance that plaintiff was on the 11th day of April and the 14th day of July, A. D. 1879, appointed by the county court of Randolph county, Missouri, by proper order of record of said court, its agent for and on behalf of said county to compromise and settle the bonded indebtedness of Sugar Creek township in Randolph county, Missouri; by the terms of said order, plaintiff was to have and receive a reasonable compensation for his services. At said time Sugar Creek township had outstanding a legal bonded indebtedness to the amount of ninety five thousand dollars, which, by said order, plaintiff was directed to proceed to compromise and take up for defendants; the said bonds were issued by said Randolph county on behalf of said Sugar Creek township. For the purpose of compromising and taking up said bonded indebtedness, it was necessary and ordered by the county court of said Randolph county that certain compromise bonds to the amount of fifty thousand dollars be issued and sold in the general market or exchange for said outstanding indebtedness, and the proceeds of any sale be applied to the extinguishment of said indebtedness. Plaintiff, in pursuance of said employment by defendant, and by defendant's direction, expended a vast amount of labor and time in getting the compromise bonds lithographed, registered and sold as required by defendant, all of which plaintiff did; and that he expended time, labor and work in such service, of the reasonable value of $7000 and that the defendant accepted, received and appropriated plaintiff's said labor by order of record and has refused to compensate plaintiff therefor and asks a judgment therefor against the county.

The ground of the demurrer which was sustained by the trial court was that said petition did not state facts sufficient to constitute a cause of action; and the action of the court in this behalf presents the only question now before us. The position of appellant, in the main, is, that this is a suit for labor, within the meaning of section 1218, R. S., and that the same is authorized and governable thereby, and that the petition contains a sufficient statement of facts to entitle the plaintiff to relief. Said section provides that, if a claim against a county, be for work and labor done or materials furnished, etc., the claimant, if he has fulfilled his contract, shall be entitled to recover the just value of such work, labor or material, although the county authorities or agents may...