Bryson v. Johnson County

Black, J. F. M. Keen constructed two stone abutments for Johnson county under a contract with the bridge commissioner’, and then assigned his claim for compensation to the plaintiff in order to raise money to pay debts incurred in doing the work. This is a suit by the assignee to recover a balance alleged to be due for the work. The trial court sustained a demurrer to the plaintiff s evidence, and the case is here to review that ruling. It may be stated here that certain exhibits said to have been attached to the deposition of the witness Koehler and set out in the plaintiff’s abstract do not appear in the transcript, and they must therefore be disregai’ded. On the other hand the defendant insists that some of the documentary evidence appearing in the transcript should be disregarded, because not called for by the bill of exceptions. The bill of exceptions professes to set out the evidence, and then follows that to which the objection is made, as well as the other evidence adduced on the trial. There is nothing in the bill of exceptions from which we can say that any of the evidence is improperly incorporated therein. If tlm transcript is incorrect, it should be corrected by and through a writ of certiorari. We must take the transcript as we find it. The petition is in two counts; the first sets out, in substance, a written contract which was put in evidence and by which Keen agreed to construct two stone abutments for an iron bridge of one hundred and ten feet span “according to the following general specifications,” among which it is provided that all work shall have a batter of one inch to one foot, on all sides, and a chisel draft of an inch and one-half on both faces, the work to be done in a thorough, workmanlike manner, in accordance with the plans and specifications máde a part of the contract. . The price is fixed at $3.98 per — 83 — cubic yard, to be paid on the completion of the work. It is alleged that pursuant to a verbal agreement with the bridge commissioner the abutments were built up square to the surface of the ground and of better material, and that the commissioner agreed to accept the work thus done as battered work. The second count declares for the value of the work. The answer is a general denial. The evidence shows that in August, 1885, the county court of Johnson county ordered Zoll, the bridge commissioner, to let contracts for the construction of several bridges, including the one in question. An order of the court made on the twenty-second of September, 1885, shows that a contract was that day let by the commissioner to Keen and approved by the court for building the two abutments in question; and on the same day Keen signed the contract before mentioned, and gave bond for the performance of the contract. The abutments were about twenty feet long, eight feet below and from seven to nine feet above the surface of the ground. The bridge commissioner'testified: “The banks of the pits were caving in from the water. I told Keen if he would carry up the faces from the bottom to the surface square, so that the headers would reach entirely through the piers, I would accept it as battered work. The. change was' necessary. The square work kept the banks from caving and was better work than that called for in the specifications, and better laid to the surface of the ground. The work as done was square work to the surface, and battered work from the surface to the top. I made no extra allowance for extra material or extra work. These piers are the best in the county. My estimate of the work done shows 196.35 cubic yards, amounting to $771.65.” Other evidence shows that the court became dissatisfied with the measurement made by Zoll and sent a committee to remeasure it and the court then paid plaintiff $465.75, withheld $110.50 because claimed by another — 84 — person, and refused to pay the balance of $195. 40. The evidence offered upon the trial tends to show that the piers contain some two hundred cubic yards of work, instead of 196.35 as reported by Zoll. 1. The point made that the written contract was simply the contract of Zoll, and not that of the county, is untenable. It says, “This contract made this twenty-second day of September, 1885, by and between P. M. •Keen, party of the first part, and C. II. Zoll, ex officio road and bridge commissioner of the county of Johnson and state of Missouri, party of the second part, witnesseth,” etc. It is signed by Keen but not by Zoll. A contract executed by an agent or officer of a corporation is the contract of the corporation where the. officer or agent acts within the scope of his authority, and the purpose to act for the corporation is manifest from, the contract taken as a whole. 1 Dill, on Munic. Corp. [3 Ed.] sec. 452; Story on Agency [9 Ed.] sec. 154. Zoll had been authorized to let the contract, and it is plain to be seen that he acted for the county as road and bridge commissioner. 2. A further point made by the defendant is that the contract is void because not signed by Zoll. Chapter 84, Revised Statutes of 1879, as amended in 1883 (Acts of 1883, p. 31), provides that the contract for building a bridge shall be let to the lowest bidder upon plans and specifications then prepared, subject to the approval or rejection of the county court. If the court approves the bid, it is then made its duty to make an appropriation for building the bridge and to “order the commissioner to contract therefor at the price let.” Regularly the contract should have been signed. by the commissioner, as well as by Keen. The commissioner, however, could only make a contract in compliance with the bid which the court had approved. The oi’der of the court approving the bid, and the contract signed by Keen, may be read together, and when thus read they show a binding contract upon the county, though Zoll did not sign — 85 — it. At all events, section 1218, Revised Statutes, 1879, hereafter set out would entitle the contractor to recover the value of the work, provided he complied with the contract. 3. The only question of any merit arises out of the parol agreement between Keen and the commissioner whereby the foundations of the piers were built up square to the surface instead of being built with a batter of one inch to the foot. The defendant relies upon section 5360, Revised Statutes, 1879, wherein it is provided, among other things, that no county, city, town, village, etc., shall be bound or held liable upon any contract, unless it “shall be in writing, and dated when made and subscribed by the parties thereto, or their agents authorized by law, or duly appointed and authorized in writing.” And the plaintiff relies upon section 1218, Revised Statutes, 1879, which is as follows: “If a claim against a county be for work and labor done, or materials furnished in good faith by the claimant, under contract with the county authorities, or with any agent of the county lawfully authorized, the claimant, if he shall have fulfilled his contract, shall be entitled to recover the just value of such work, labor and material, though such authorities or agent may not, in making such contract, have pursued the form of proceeding prescribed by law.” Section 5360 was enacted in 1874 and was not re-enacted in the form of a revised bill in 1879, but simply collated by the revision committee. Section 1218 has been a part of the statute law of this state since 1863 and was re-enacted by a revised bill in 1879, and is therefore the last legislative expression and must prevail over section 5360 so far as the two sections are in conflict. Section 1218, however, dpes not profess to give the claimant a right to recover on a contract with a county official when such official had no power in law to make it. It contemplates those cases where the official — 86 — or agent has the power to make the particular contract, but fails to pursue the proceeding prescribed by law in making it. The bridge commissioner is a county authority within the meaning of said section, but he had no power to make any contract which differed in any substantial respect from the bid approved by the county court. It is the approval by the county court which gives validity to the bid and gives the commissioner power to make the contract. The commissioner could not alter the plans, upon which the bid was made and approved in any material respect. To allow the commissioner to materially change the contract, after the bid had been approved, would open wide the door to fraud and favoritism, the thing which the law seeks to guard against. But the building of the bridge pursuant to the plans and specifications is under his direction, and it is but reasonable to say that unimportant changes, made to meet unforeseen exigencies, ought not to defeat a recovery. A fair and substantial compliance with the contract is all that can be asked.' The proof shows that the work was superior to that required by the specifications, and the piers are battered above ground. The fact that they were not battered .below the surface but were built up square and with better stone to secure a better foundation is rather in keeping with the spirit of the contract, than a variation from it, and ought not to defeat a recovery. In determining whether there was any substantial variation from or change of the plans and specifications we must look to the nature and character of the work, and the purposes for which these abutments were built. The defense now set up seems to be an afterthought, and the evidence does not show any substantial change of the plans, or alteration of the contract. 4. It is again said that there is no evidence that the court made an appropriation to pay for the work. It was the duty of the court to make the appropriation — 87 — •when it ordered the commissioner to enter into contract with Keen, and it will be presumed that the court performed its duty until the contrary is made to appear. But even if the court failed to perform its duty in this respect, that would not defeat a recovery by the plaintiff for the work done by Keen. The judgment is reversed and the cause remanded. All concur.