Amite County v. Mills , 138 Miss. 222 ( 1925 )

As a member of Division A of this court, I joined in the reversal of this case because I felt impelled to do so on the authority of Smith County v. Mangum, 127 Miss. 192, 89 So. 913, which case I was not then willing to overrule. After a reconsideration of the case by the court en banc on suggestion of error, I have reached the conclusion that the Mangum case is unsound and mischievous, and ought to be overruled.

In my judgment Crump v. Colfax County, 52 Miss. 107, which has never been expressly overruled, and the Mangum case are squarely in conflict. The Crump case held that a county was liable on an implied contract for the reasonable value of benefits received by it by virtue of a void contract. In that case the contract under consideration was one which the county was authorized to make. The contract was held void because it was not entered into by the county by order entered on the minutes of the board of supervisors.

The subject-matter of the contract involved in the case at bar is one about which counties, under chapter 176, Laws of 1914, are authorized to contract. In other words, if Amite county had pursued the statute in reference thereto, the contract would have been valid. The supreme court of the United States and the courts of last resort of many of the states, have held that, where a county receives and retains substantial benefits under a contract which it was authorized to make but which was void because defectively executed, it is liable on an implied promise for the reasonable value of the benefits received. 7 R.C.L. 946, section 22; 15 C.J. 559, 560, section 256, and cases in notes.

Appellee almost completed his contract, and, according to the judgment of the court below, which is sustained by the evidence, would have done so had he not been illegally prevented by appellant. For more than a year and a half he was engaged in its performance. During that time monthly estimates were rendered by the engineer in charge, and payments made by appellant under the terms of the contract. In fact, in this manner appellant claimed that it had more than paid appellee the contract price. Appellant had in its hands, as retained percentage belonging to the appellee under the contract, about six thousand five hundred dollars. Until appellee brought this suit not a question was ever raised by appellant as to the validity of the contract. After suit was brought appellant then, for the first time, contended that the contract was void and that, therefore, it owed appellee nothing. Under the principles laid down in the majority opinion appellant can not only retain what it agreed to pay appellee, but can sue and recover back from him every dollar paid him under the contract. In other words, appellant has the right to keep the fruits of appellee's labor and materials; it has the right to keep and use the roads he built, and also the price it agreed to pay him therefor.

I say that good morals and even-handed justice demand that appellant should pay appellee the reasonable value of the benefits received by it.

We should overrule the Mangum case, and go back to the Crump case.