Campbell v. Morrison

delivered the opinion of the court.

This controversy grows out of an agreement entered into between appellant, Campbell, and four other citizens with the county of Leflore, whereby appellant and his associates agreed to pay one-third of the cost of the construction of one mile of improved road or highway constituting a link in what is referred to as the Humphreys Highway in the said county of Leflore. The agreement reads thus:

“Articles of agreement between the county of Leflore, party of the first part, and the undersigned citizens of beat No. 5 of said county, interested in the public road hereafter described, witness, that said party of the first part has agreed to have constructed one mile of public *419road Tinder the plans and specifications on file with the chancery clerk of said county, for what is know'n as the Humphreys Highway in said county; and that the said mile has been designated as fills on the Huffstickle road not exceeding one mile in length. The undersigned therefore undertake, agree, and hy these presents hind themselves, for the benefits accruing to them hy the building of said road, to pay upon the completion of the same one-third of the costs of the construction of the same, which one-third is hereby estimated at two thousand dollars and the undersigned W. A. Swift for his proportion of the same hereby tenders his certified check for the sum of five hundred dollars, said check to be held together with the contract and to be presented when said road is completed, the payment of which said check will release the said Swift from any further liability on the contract, except that which the same lacks of being one-fourth the obligation. Witness our signatures this the 3d day of August, 1914. [Signed] W. A. Swift, C. N. D. Campbell, W. B. Posey, C. M. Linch, Lyon Bros. Company.”

Prior to the execution of this agreement the board of supervisors by an order duly spread upon the minutes agreed to improve or reconstruct one mile of road in each supervisor’s district of Leflore county, according to certain plans and specifications agreed upon for the laying out and building of the Humphreys Highway, upon condition that one-third of the cost of such improvement should be borne hy persons making petition for same, the county paying the other two-thirds of the cost. At the July term, 1914, the board entered an order directing the improvement' of one mile of road in beat 5, described the road to he made, and directed the clerk to publish notice for bids, and stipulating further that “the contract be let on the first Monday in August, 1914, upon the persons interested in said road entering into a sufficient contract to pay for one-third of the same under the regulations of this board.”

*420The clerk gave notice in which it was stated that said road would be improved under “the plans and specifications of the Humphreys Highway now on file in the office of the chancery clerk of said county.” At the August meeting the contract executed by Campbell and his associates was presented to the .board and the original deposited with the chancery clerk, but the same was not marked “filed” by the clerk. The plans and specifications appear to have been filed with the chancery clerk. At the August meeting the bid of ap-pellee, Morrison, was accepted, and the contract awarded to the appellee, and, according to the order of the board, “same being conditioned on the proposal of W. A. Swift et al. to pay one-third the costs of same.” It is in evidence that .Morrison entered into a contract with the county with the understanding that appellant and his associates had agreed by writing to pay one-third of the cost of the construction, and relied upon this understanding. The county paid two-thirds of the cost, and certain of the property owners paid their pro rata share, but appellant declined to pay anything, and repudiated the contract. The county was satisfied with the work as completed, and, according to Morrison’s testimony, each one of the citizens interested appeared before the board “and asked them to accept it, and said they thought it was the best mile of road built in Leflore county. ’ ’

The case was submitted to the trial judge on motion of both sides for a peremptory instruction, and, upon due consideration, the learned circuit judge directed a finding for the plaintiff, and judgment accordingly was rendered for the total sum of nine hundred and fifty-nine dollars and ninety-six cents against all of the defendants who signed the written contract, except W. A. Swift, who voluntarily paid in advance by certified check, and who was not embraced as a party defendant.

Appellant, Campbell, prosecutes this appeal, contending that the action of the board in entering into a written *421contract with him was ultra vires, and therefore not an enforceable contract; that the written contract itself was not spread upon the minutes of the hoard; that the road as constructed was not accepted by the board; that the work contracted for was for public work, and is without consideration, and for that reason void; and that the assignment of this written contract by the county to appellee was illegal, without authority of law, and appellee can maintain no action thereon.

The board did assign the written contract to appellee as the contractor primarily interested in collecting the balance due, and the contractor prosecutes this suit in his own name and for his own benefit.

It is unnecessary to discuss separately the points raised on this appeal. The contentions may properly be grouped under the one general contention that as between appellee, plaintiff in the court below, and the defendant there was no lawful, binding contract. But for the plaintiff there is no “lion in the path” toward recovery. We do not appreciate the force of the argument that the contract was unlawful. On the contrary:

“A promise to pay a public corporation, or its agents, a premium for doing their duty is illegal and void; and a contract will not be sustained which tends to restrain or control the unbiased judgment of public officers. But :fi promise by individuals to pay a portion of the expenses of public improvements does not necessarily fall within this principle, and such a promise is not void as being against public policy; and if the promisors have a peculiar and local interest in the improvements, their promise is not void for want of consideration, and may be enforced .against them.” 2 Dillon on Municipal Corporations (5 Ed.), section 792, p 1183.

The abutting property owners were interested in the construction of an improved highway along or through their property. Their interest in such work and improvements was most natural. The general proposition of the board of supervisors to pave the road along *422appellant’s property, on the conditions named, might naturally challenge his interest and appeal to his business judgment. Appellant has a .peculiar interest; the contraction of an improved highway would naturally add value to his land. The law recognizes the right of the legislature to direct or authorize local improvements at the partial or total expense of abutting property owners. But the county, having jurisdiction of roads, very naturally should award the contract and supervise the construction. In this case the board agreed to have the road improved upon the express condition that the property owners pay one-third of the cost, and this the property owners had agreed to in writing. This agreement certainly is not without consideration. The agreement was signed and delivered to the clerk of the board of supervisors and treated as a delivered contract. The board accepted the understanding and reiterated the condition in the very notice calling for bids. In other words, the board stipulated the same condition in its contract with appellee, Morrison, for the building of the road. Morrison accepted the understanding and did the work on the faith thereof. The agreement was in the interest of the road contractor, and we see nothing unlawful on the part of the board assigning the agreement to the contractor, or, in the contractor bringing this suit in his own name. He is the real party in interest. The agreement of the property owners was to pay one-third of the actual cost, and in the very nature of the case the property owners knew that this money would ultimately go to the contractor. This is not a suit against the county, and any contention that the agreement is unenforceable because not spread upon the minutes is without merit.

It was held in Marion County v. Foxworth, 83 Miss. 677, 36 So. 36, that a proposal to do certain work for a county need not be spread upon the minutes, but becomes a binding and enforceable contract when referred to in the order of the hoard.

*423The law, of course, did require that the contract to _ build the road should he spread upon the minutes, and this was properly done. There is here no controversy between-the county and the contractor. This is a suit upon the individual undertaking of the property owners, a perfectly lawful and binding contract. The liability of abutting owners under agreements of this character has been sustained in the following cases, cited in counsel’s brief: City of Springfield v. Harris, 107 Mass. 532; McKeesport v. Wood, 160 Pa. 113, 28 Atl. 574; Burton v. Laing (Tex. Civ. App.), 36 S. W. 298; Gerard v. City of Seattle, 73 Wash. 519, 132 Pac. 227.

On all points raised the judgment appealed from should be affirmed.

Affirpied.