Mayor of Ensley v. Hollingsworth

DOWDELL, C. J. Tbe complaint contained tbe common counts, and two special counts on an express contract. The contract was not set out in bsec verba, but was declared on as to its legal effect. A demurrer was interposed to tbe special counts assigning as grounds tbe failure to set out tbe contract in full in tbe complaint, and tbe failure to aver whether tbe contract as declared on was verbal or in writing. Neither of these tivo grounds is tenable. Tbe complaint averred tbe contract in substance, and a performance of tbe same‘on tbe part of the plaintiffs, and tbe only breach alleged was tbe failure of tbe defendant to pay tbe sum stipulated to be paid. This was a sufficient statement of the plaintiffs’ cause of action without setting out tbe contract in ha;e verba. “The general rule is that, if a contract would have been good at common law before the passage of tbe statute of frauds, it is not necessary to aver that it is in wanting. It is sufficient if tbe wanting be produced in evidence at tbe trial.”—Brown v. Adams, 1 Stew. 51, 18 Am. Dec. 36, 9 Cyc. 715. Tbe contract sued on is set out in tbe bill of exceptions. It is an admitted fact that J. B. Hollingsworth, one of tbe plaintiffs in this suit and a member of the partnership of J. E. Hollingsworth & Co., with whom tbe contract was made, was at tbe time of the making of the contract an alderman and member of tbe council of the defendant municipality. Tbe subject-matter of tbe contract as the construction of sanitary sewers for the city. Bids for the work were advertised for, and [401] in response to the call there were eight bidders, the plaintiffs being one of them. The plaintiffs’ hid was accepted, and the contract sued on was made. The charter of the city of Ensley (Acts 1900-01, p. 247) conferred upon the mayor and council the authority to provide for the construction of sewers for the city and conferred upon them the power of contracting to that end. Under these charter powers, it became and was the duty of the plaintiff J. E. Hollingsworth as an alderman and a member of the. council to act for and in the interest of the municipality in providing for the construction of the sewers and in the making of the contract for that purpose. His office and duty were public, and his relations to the municipality in regard to the matter of the contract were in the highest sense of a fiduciary nature. He occupied a position, which in the making of the contract brought in conflict his private, personal interests with big. public duty. It ivould be hut natural for him as an individual to be prompted by self-interest to obtain a contract most favorable to himself. On the other hand, it was his duty as a public officer to act with sole regard to the public interests. It is a case where self-interest and public duty are directly opposed. Such contracts are forbidden by public policy. Treating of this subject in 9 Cyc. 498, it is said: “Another class of agreements which are within the rule are those between a state, a county, or other municipal corporation for the doing of work or the furnishing of supplies with one of its own officers or with a company or body of men of which such officer is one, or in which he is interested.” In the note to this text many cases are cited, and among them one of our own — the case of McGehee v. Lindsey, 6 Ala. 16—which is directly in point. See, also, 15 Am. & Eng. Ency. Law (2d Ed.) pp. 975, 976, where, also, many cases are cited in the note. [402] It is of no moment that the plaintiff J. E. Hollings-worth was not present, or that “he did not vote upon the acceptance of his bid,” at the meeting of the council when the bids were canvassed and the acceptance made. It was his duty as a member of the council to attend such meeting. The very fact of his absence and failure to render that public service which his public office required of him, if occasioned by reason of his being interested in the bids, fully demonstrates the wisdom of the law in pronouncing all such contracts void on grounds of public policy. The contract being void for the reasons and upon the grounds stated, the plaintiffs are not only without a right of action on the contract itself, but cannot maintain an action upon the quantum meruit for work done, or upon the quantum valebat for materials furnished. The transaction itself out of which the contract springs falls under the ban of the law. It comes within the class, and upon like principles, of contracts that are expressly prohibited by statute. The illegality affects the entire transaction, and out of it no cause of action arises.—McGehee v. Lindsay, supra; Hill v. Freeman, 73 Ala. 200, 49 Am. Rep. 48; Clark v. Colbert, 67 Ala. 92; 9 Cyc. 546, where many other cases are cited to the text in the note. A distinction has been taken by the courts between contracts void because violative of the statute opposed to public policy, and those that are merely ultra vires or that are merely unauthorized by law. While in the former no right of action arises either upon the contract itself, or the transaction out of which it springs, in the latter case although no action may be had upon the express contract, still where money or property has been received under the contract and beneficially applied to authorized objects or purposes under the law, [403] an action of implied assumpsit may be bad.—Bluthenthal v. Headland, 132 Ala. 249, 31 South. 87, 90 Am. St. Rep. 904; Allen v. Intendent, etc., 89 Ala. 641, 8 South. 30, 9 L. R. A. 497. In this case the rulings of the trial court were opposed to the views we have expressed, and since what we have said is sufficient for the purposes of another trial, and on the conceded facts in our opinion conclusive of the litigation, it is unnecessary to consider any of the other questions presented on the record. Reversed and remanded. Anderson, McClellan, and Sayre, JJ., concurring.