Wunderlich v. State Highway Commission

• Decision Date: 14 November 1938
• Docket Number: 33248
• Citation: 183 Miss. 428,184 So. 456
• Court: Mississippi Supreme Court
• Parties: WUNDERLICH v. STATE HIGHWAY COMMISSION

184 So. 456

183 Miss. 428

WUNDERLICH v. STATE HIGHWAY COMMISSION

No. 33248

Supreme Court of Mississippi

November 14, 1938

APPEAL from the chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Action by Martin Wunderlich against the State Highway Commission to recover expenses paid out by plain, tiff in maintenance of highway constructed by him for the commission, to extent that expenses were proximately caused by breach of contract by the commission. Judgment sustaining a plea of accord and satisfaction, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Creekmore, Creekmore & Capers, of Jackson, for appellant.

There was no accord and satisfaction as to the Harrison County project.

It is elemental law that in order to have an accord and satisfaction there must be a contract or agreement between the parties.

1 C. J S., Accord and Satisfaction, sections 1 and 3, and pages 469 and 522.

In speaking about the effect of notations on checks such as "in full payment, " etc., I C. J. S., page 525 says: "The effect of such a declaration or notation is destroyed where other communications or declarations or a statement of account, accompanying the payment, or the circumstances under which it is made, indicate to the creditor that something less, as the discharge of a particular claim or liability or of particular items of liability, and not the entire claim or all the claims of the creditor, is all that the debtor has in mind or intends."

Steel Co. v. Premier Mfg. Co., 94 Conn. 652, 110 A. 52; Drukin v. Everhot Heater Co., 266 Mich. 508, 254 N.W. 187; Cooper v. R. R. Co., 82 Miss. 643; 1 C. J S., page 526; American Mercantile Co. v. Chair Co., 129 Lee App. 548; Enochs v. Delta Cotton Oil Co., 139 Miss. 234, 104 So. 92.

The acceptance of a payment tendered as satisfaction of a designated claim or demand effects an accord and satisfaction as to such claim or demand only, and not as to any other and distinct claim or liability, even growing out of the same or similar matter or transaction.

1 C. J. S., page 533; Pitts v. National Fisheries Co., 71 Colo. 316, 206 P. 571, 34 A.L.R. 1033; Ingrain v. Sauset, 121 Wash. 444, 34 A.L.R. 1031; Randle v. Lbr. Co., 95 Vt. 158, 113 A. 872; Root v. Murry Co., 75 A.L.R. 902; Babbit Bros. Co. v. Steinfield, 28 Ariz. 403, 237 P. 186; Rhodes v. N. O. & G. N. R. R. Co., 129 Miss. 78.

There are, of course, quite a few Mississippi cases in which the court held that the acceptance of a check under certain circumstances effected an accord and satisfaction. A careful examination of all of these cases reveals the fact that the check itself had on it a notation to the effect that it was payment in full, settlement and payment up to certain date, or in full settlement of account due. Also, in these cases it appeared that the check was tendered or offered in full settlement of all claims and that this was known and understood by the creditor when he accepted the check. Among these cases are:

May Bros. v. Doggett, 155 Miss. 849; Phillips v. Ins. Co., 156 Miss. 41; Greener & Sons v. Cain & Sons, 137 Miss. 33; Blue Ribbon Creamery v. Monk, 168 Miss. 130; Bucker v. King Construction Co., 159 Miss. 387; Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4; State Highway Commission v. Duckworth, 172 So. 148.

There was no accord and satisfaction on the Madison County project.

There was no accord and satisfaction on the Chickasaw and Lee County project.

There was no accord and satisfaction on the Lafayette County project.

It is, of course, the law that the Highway Commission can be sued only for liabilities imposed upon it by a statute. We think, beyond any question, that the statutes empowering the Commission to construct roads and enter into contracts for such construction gives the Commission the privilege of suing a defaulting contractor and imposes upon the Commission the liability of being sued by a contractor for a breach of the contract by the Commission.

State Highway Commission v. Chatham, 173 Miss. 427, 161 So. 674; State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263; State Highway Commission v. Gully, 167 Miss. 631, 145 So. 351; Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Brabham v. Hinds County, 54 Miss. 363; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162.

The State Highway Commission is liable for damages for breach of a contract.

State v. Farish, 23 Miss. 483; U.S. v. Smith, 4 Otto 214, 24 L.Ed. 115; Amoskeog Mfg. Co. v. U.S. 17 Wallace 592, 21 L.Ed. 715; Mueller v. U.S. 113 U.S. 153, 28 L.Ed. 946; U.S. v. Spearin, 248 U.S. 132, 63 L.Ed. 166; Russell v. U.S. 182; U.S. 516, 45 L.Ed. 1210; Ludlington v. U.S. 15 Ct. of Cl. 451.

It has been held in several cases that the liability of the government in actions on contract is simply that which the plaintiff might use against another defendant in another court.

Deming v. U.S. 1 Ct. of Cl. 190, 9 Wallace 145, 19 L.Ed. 771; Curtis v. U.S. 2 Ct. of Cl. 144; Southern Pacific Co. v. U.S. 28 Ct. of Cl. 77; Bowe v. U.S. 42 F. 761; 59 C. J., sec. 320.

By statute the immunity of the Highway Commission against suit is waived, certainly, as to all causes of action for which liability is created by the statutes. We earnestly maintain that the statutes, when they expressly authorize the construction of roads and the execution of contracts for the construction of roads, create certain rights and liabilities on the Highway Commission. It is unquestionable that the Highway Commission can sue, or be sued, and that it could sue a contractor for his breach of the contract.

59 C. J., page 189, and sections 328 and 461; People v. Dinsmore, 1 Thompson (N.Y.) 280; Life Ins. Co. v. State, 159 Miss. 513, 132; So. 459; Ins. Co. v. State, 132 So. 560; Miss. Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517; Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281; Hall v. State, 79 Miss. 38, 29 So. 994; Green v. State, 53 Miss. 148; McMaster v. State, 15 N.E. 417; University v. Bruner, 51 N.E. 687; People v. Sohmer, 207 N.Y. 450, 101 N.E. 164.

A county being a subdivision of the state is entitled to the same immunity from suit as the state. Unless the immunity is waived, a suit cannot be maintained against it. But when there is a waiver, and a liability created against the county by a statute, suit may be brought the same as against an individual.

Section 270, Code of 1930; Robb v. Tel. Co., 104 Miss. 165; Drainage Dist. v. Bolivar County, 111 Miss. 250; Hancock County v. Cooper, 147 Miss. 57; Smith County v. Mangum, 127 Miss. 192, 89 So. 913; Marion County v. Foxworth, 83 Miss. 677.

There is no question but that a contract of the county must be evidenced by an entry upon the minutes.

Bridges v. Clay County, 58 Miss. 817; Gilcrist Fordney Co. v. Keys, 113. Miss. 742, 74 So. 619; Smith County v. Mangum, 127 Miss. 192; Drainage Dist. v. Bolivar County, 111 Miss. 250; Corinth v. Carothers & Co., 129 Miss. 645, 92 So. 696.

The rule is general that parties contracting with a county must see that their contracts are legal.

Jackson Equipment Co. v. Dunlap, 172 Miss. 752, 160 So. 734; Russell v. Copiah County, 153 Miss. 459.

Nor can counties be held liable under an implied contract.

Attala County v. Miss. Equipment Co., 162 Miss. 564, 139 So. 628.

None of these objections, however, apply in the case at bar. Here there is an express contract, the legality of which is not questioned, nor the authority of the Commission to make such contract. Furthermore, the contract has been completely performed in all details.

By contract, in the case at bar, the Commission itself agreed and bound itself to furnish the right of way. Its failure to do so cannot be said to be the negligent or tortious act or omission of an employee.

Harrison County v. Marione, 110 Miss. 592, 70 So. 702; City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; 15 C. J. 559, sec. 255; American Pipe Co. v. Westchester Co., 225 F. 947; Coles County v. Goehring, 209 Ill. 142, 70 N.E. 610; Kennedy v. Queen's County, 47 A.D. 250, 62 N.Y.S. 276; Holmes County v. Burton Construction Co., 267 F. 769; U.S. v. Speed, 8 Wallace 77, 19, L.Ed. 449; Merrill Engineering Co. v. U.S. 47 F.2d 932.

We wish to call the court's attention to an Indiana case, State v. Feigle, 162 N.E. 55. That case is an almost identical one on the facts as the one before the court. Each and every point of law involved in the case before the court is raised and decided by the Indiana decision. The question of accord and satisfaction is decided on exactly the same state of facts as exists in the present case; the question of the Commission being liable for breach of contract is decided; and, in fact, every other question involved in the present case is determined.

In the Indiana case the contractor claimed damages for failure of the State Highway Department to furnish right of way and his damages consisted in the main of the same character of damages sustained by Wunderlich. The Indiana contractor claimed a breach of contract by the Highway Commission although there was no specific time provided for within which the Commission should furnish the right of way, but the court held that when the Commission instructed the contractor to proceed with the work, it must furnish the necessary right of way so that the work might be commenced and prosecuted in an orderly manner. The court will also bear in mind that the Indiana contractor accepted monthly estimates and when the work was completed, accepted a final estimate and a check thereon, and the court held that this the contractor had a right to do and claim damages for the breach of the contract. Also, that the breach of the contract did not involve any tort of the Commission and that since...