Montgomery County v. Barber

PECK, C. J. Counties in Alabama are corporations. Section 897, Revised Code, declares, “ every county which has been, or may be hereafter established in this State, is a body corporate, and with power to sue or be sued in any court of record.” As to all matters and things that properly appertain to a county, they have the same powers to contract and be contracted with as individuals. [243] County buildings are to be erected and kept in order and repair at the expense of the county, under the direction of the court of county commissioners, which court is 'authorized to make all necessary contracts- for that purpose.— Revised Code, § 900. I refer to this section as an instance to show the authority to make contracts. Being mere artificial persons, they necessarily make contracts by officers and agents, and do all necessary business in the same way. Where the mode and manner of contracting are not prescribed, or the persons or agents by, and with whom contracts are to be made, counties may make contracts in the same manner as individuals, or other corporations. Their contracts may be in writing or by parol. An action of assumpsit will lie against a corporation, upon simple contracts, made by its authorized agents, when acting within the scope of the legitimate business of the corporation. Anciently, it was held that an action of assumpsit could not be supported against a corporation because, as then understood, a corporation could not contract by parol. Chitty on PL 106a. The law, however, is otherwise now. Mott v. Hides, 1 Cowen’s Rep. 513. And by the better modern authorities, assumpsit will lie against a corporation, even on an implied promise. — Note 3d, 1 Chitty’s Pl. 108a, and the cases there cited. And I can see no good reason why it should not be so. We, therefore, hold that if a county, by its proper officers or agents, makes a contract for work and labor in repairing public buildings, or for any other necessary purpose, without stipulating the price to be paid, it may be sued in assumpsit, on a quantum merit, in the same manner as you would sue any other person in a like case. The first count in the complaint, on its face, is, therefore, a good count. It is unnecessary for us to decide whether the special count is, or is not, a good count. The rule is well settled, that if a complaint contains more counts than one, and there is a demurrer to the whole complaint, the demurrer will be overruled, unless there is [244] a misjoinder of counts. — Hooks v. Smith, 18 Ala. Rep. 338 ; Furgerson & Scott v. Baber's Adm’rs, 24 Ala. Rep. 402. The objection that the complaint begins by saying, the plaintiff, “ as sheriff of Montgomery county,” complains, has nothing in it. The plaintiff might have sued in his own name, as an individual; therefore, the words as sheriff, &c., will be held to be mere descriptio personal, and surplus-age. They do not vitiate the complaint — utile per inutile non vitiatur. The demurrer was properly overruled, and . as the only error assigned is the overruling of the demurrer, the judgment of the court below is affirmed, at the costs of the appellant.