Snyder v. Board of Education

10 N.M. 446, 10 Gild. 446

• Court: New Mexico Supreme Court
• Decided: August 23, 1900
• Docket: 863
• Status: Published

Opinion

McFIE, J.

If, upon the face of the pleadings, it is manifest that the appellant was not entitled to recover, there can be no reversible error in this case, and it is not necessary for the court to consider the refinements of pleading nor the right to a trial by jury, suggested by appellant in his assignments of error.

School board wruing*Swhenn The appellant sues as an individual untrammeled with the duties and responsibilities of the official relations he sustained to the board of education of which he was member; the defendant, therefore, had a right under the code to •set up as new matter the plaintiffs membership in the board; that the duties performed were those required of him as ■such member, and that he was not entitled to compensation under the statute, which provides that “no member of the board of education shall receive any pay or emolument for his services.” Section 1572 C. L. 1897. There being no reply filed denying this new matter of defense, which was equivalent to an admission, the court could have rendered judgment upon this issue alone, as it could not well be contended that the plaintiff could recover for services the law required him to perform without compensation. As a member of the board he was required by law to perform .services for which he was not entitled to compensation and it devolved upon the appellant to allege that the services rendered were not such as were required of him in his official capacity. To allege that the services performed were legal services, was not sufficient. A lawyer who is member of such board, may voluntarily perform legal services for which he could not recover. For instance at a meeting of the board a legal question might arise, upon which, a valuable opinion might be given, but in such case, there ■could be no recovery for legal services unless under an agreement to that effect with the board. If the appellant relies upon actual employment we are then brought to the consideration of the third paragraph of the defense, the facts of which are admitted by the demurrer. The appellant alleges that he was employed as an attorney to perform legal services; that his services were reasonably worth three hundred dollars, and that the board promised to pay the amount. Appellant having alleged the value of the services, he was employed to perform, and valuation being a material allegation for the determination of the sufficiency of the pleading, he is of course bound by it. Butts v. Woods, 4 N. M. 343. These allegations are, substantially, that the plaintiff was employed to perform legal services to the value of three hundred dollars, or ‘possibly it may be said that the contract of employment was unlimited, except by the reasonable value of the services rendered. As a defense -the appellee set up the provisions of the act creating boards of education in this territory and under which the appellee corporation was organized, as follows: “No expenditure involving an amount greater than two hundred dollars shall be made except in accordance with the provisions of a written contract, and no contract involving an expenditure of more than five hundred dollars for the purpose of erecting any public buildings or making any improvements shall be made except upon sealed proposals and to the lowest responsible bidder.” Section 1581, C. L. 1897.

If the appellant relied upon an express contract, and these allegations as t'o employment and the promise to pay, were intended by the pleader as setting up such contract, the above provision of the statute pleaded in the third paragraph of the answer, would be a complete bar to the action and defeat recovery by the plaintiff, as the statute provides a specific limitation upon the power of the appellee to contract for an expenditure of more than two hundred dollars, unless the contract is in writing, and the appellant does not allege that there was a written contract.

In the brief of counsel for appellant we find the following statement, which sets at rest any claim for- judgment under an express contract: “Had there been an express contract to pay the three hundred dollars, it is clear that the plaintiff could not enforce the contract as against defendant’s objection that it was not in writing, but he can recover for the reasonable value of the services whether they be more or less than the contract price.”

Municipal corporation: contracts: none implied, when. It is evident, therefore, that the appel-does not rely upon any contract of employment, but does rely upon an implied contract which would warrant a recovery under a quantum meruit.

If this were a case between private individuals, or possibly corporations, having an unlimited capacity to contract, the performance of services on the one side, and acceptance of them by the other side, would authorize a recovery of the reasonable value upon a quantum meruit, even though the services were performed under a void contract. The rule which forbids the defense of the statute of frauds against an executed contract, has no application to the case at bar. The rule is stated by the Supreme Court of the United States to proceed and rest upon the principle, that there is no rule of law which prevents a party from performing a promise which could not be legally enforced, or which will permit the party morally, but not legally bound, to do a certain act or thing, upon the act or thing being done, to recall it to the prejudice of the promisee, on the plea that the promise while still executory, could not by some technical rule of law have been enforced by action. Bibb v. Allen, 149 U. S. 497. This is the general doctrine under the defense of the statute of frauds, but it is not applicable to all cases, and a different doctrine prevails where there is a statutory limitation upon the power to contract or incur indebtedness.

School board: implied proises: presumptions. The board of education of the city of Albuquerque is a quasi municipal corporation, of which body the appellant was a member. By reason of the relations between them, the appellant was bound to serve the appellee to some extent at least, without compensa-ti°n> and in addition to this appellee is for-bidden to authorize any expenditure in excess of two hundred dollars except in accordance with the provisions of a written contract. This act is not a statute of frauds, but of limitation upon the capacity of appellee to contract. Appellant having come into court seeking to recover money from the ap-pellee, was compelled to allege facts showing a legal right to recover, and has contented himself with allegations, which, while they might be sufficient in a suit by one individual against another, are wholly insufficient to entitle him to recover in this case, and he asks this, court to hold that a promise to pay for his services will be implied by law from the acts of a quasi municipal corporation, of which he is a member, done in violation of the express language of the statute from which the corporation derived its powers.

The authorities cited by the appellant announce the correct doctrine under the statute of frauds, in ordinary cases. The principle contended for by the appellant under the statute of frauds may be considered well settled. The evil intended to be guarded against by the provisions of the statute of fraud’s requiring certain contracts to be in writing is entirely different from that which provokes the enactment of statutes such as the one now under consideration. When a private individual has received the benefit of the labor of another, performed under a contract which is void -by the statute of frauds, the reason for the existence of the statute as to that particular transaction ceases to exist; consequently for the purpose of doing justice between the parties the statute ceased to be available as a defence. The reason for the inhibition of the statute invoked in this case, is equally applicable after as before the execution of the contract. This statute was enacted for the protection of the public as a limitation upon the power of the board of education to contract, and to say that the board may bind the public by disregarding the provision of the section in question, is but another way of saying that such legislation is without validity. It will not do for the appellant to say in this action, that the proof might have shown the services to be less valuable than those alleged; the question here is one of pleading which alleges employment and the value of the service thereunder to be three hundred dollars, and which allegation is binding upon the appellant in this court. The appellant is presumed to know the law. He is chargeable especially with knowledge of 'the law under which the corporation acts of which he was a member. He is chargeable with a knowledge of the provision limiting the power of such board to contract and defining the manner in which contracts shall be made. The appellant in dealing with the board was bound to* see that all the requirements of the law are complied with, and by neglect of such precaution, he became a mere volunteer, and must suffer the consequences. He can not contend that services voluntarily performed by him as a member of the board, could be sued for and a recovery had for their value. He is, therefore, compelled to rely either upon a written contract, or a verbal contract or employment involving an expenditure not exceeding two hundred dollars. In this action the appellant seeks to recover the sum of three hundred dollars for legal services for which he admits in his brief he could not contract, except in writing, and insists upon a promise to pay which he alleges the law implies. If the appellant may recover three hundred dollars by failing to enter into a contract with the board, on the ground of an implied promise to pay; it follows that an implied promise might be invoked for a much larger amount, and there would be absolutely no limit to the amount of the recovery as against this board. The limitation of the statute is swept away; the law is effectually avoided, and the object for which this statute was enacted, is defeated. It is not reasonable to believe that the law would imply a promise to pay for services rendered under a contract or arrangement in violation of the provisions of the statute.

Mechem on Public Offices and Officers, section 831, says: “Where the law expressly requires that the contract shall be executed in a certain manner, or shall be in writing, or shall also be approved by some other officer, such requirement must be complied with or the contract will not be binding upon the government.” “And where a statute provides that all the contracts of a municipality shall be made in a certain way, it has been held that it could not be held liable on an implied contract. This rule has been applied where a city charter required that all contracts should be in writing.” 15 American and English Encyclopedia of- Law, ’‘page 1085.

In the case of Parr v. Greenbush, 72 N. Y. 463, the court says: “A person contracting with public officers must také notice of their powers; he is charged with knowledge of the law, and he makes a contract in violation of the law, at his peril. When the law commands public officers before entering into a contract; to advertise and contract with the lowest bidder, a contract made without advertising and without competition is wholly void and imposes no obligation upon the public body assumed to be represented. Laws of this character imposing restraint upon public agents, have been found to be necessary and beneficial. Public policy requires that they should be rigidly enforced, but the claim is made that as the work and materials were furnished and the village has received some benefit from them, it is an implied obligation to pay what they were worth. If this were so, the law could always be easily evaded. That it is not so, is no longer an open question in this court.”

Brady v. New York, 20 N. Y. 312; McDonald v. Mayor, etc., of New York, 68 N. Y. 23; Smith v. Newburgh, 77 N. Y. 136; McBrian v. Grand Rapids, 56 Mich. 95.

In the case of McDonald v. Mayor, etc., of New York, 68 N. Y. 23, the court says: “The main reliance of the plaintiff is upon the proposition that the defendant having appropriated the materials of the plaintiff and used them is bound to deal justly and to pay him the value of them.” In the case of Nelson v. Mayor, etc., of N. Y., 63 N. Y. 563, it is said: “The learned judge who delivered the charge in that case does indeed use language which approaches. the plaintiff’s proposition, but the judgment in that case did not go upon the doctrine there put forth and when the opinion is scrutinized it does not quite cover this case.” The learned judge proceeds to show that where the statute provides that all contracts shall be in writing there is no room for saying there can be an implied contract, and where the statute which continues the corporate- life of the municipality and gives it its powers and prescribes the mode of exercising them says that all such contracts shall be in writing it can not become liable upon an implied promise, and further says “restrictions and inhibitions by statute are practically of no avail if they can be brought to naught by the unauthorized action of every official of the lowest degree and acquiesced in and not repudiated by his superiors.”

In Bank of the United States v. Danridge, which.is a leading case upon the doctrine of liability of a corporation aggregate upon a promise implied, holds “that if the charter imposes restrictions upon the manner of contracting they must be observed.”

In the case of Argenta v. San Francisco, 16 Cal. 256, Mr. Justice Field in deciding that case held, that there was no implied contract; that the proposal made pursuant to advertisement and the expense thereof by the defendant constituted an express contract; that independent of' such contracts, he did not consider that the liability would attach to the city for the improvement of the streets; that a munici-; pal corporation can only act in cases and in the mode prescribed by its charter; and in street improvements-of local nature, express contracts authorized by ordinance are necessary to create liability, and the doctrine of implied liability as upon implied contracts has no application in cases of this character, x Dillon on Municipal Corporations, section 449.

In the case of McCoy v. Bryant 53 Cal. 247, the court held: “It is the general and fundamental principle of law that all persons contracting with a municipal corporation, must at their peril, inquire into the power of the corporation, or its officers, to make the contract; and, a contract beyond the scope of the corporate power is void, although it be under the seal of the corporation. Dillon on Municipal Corporations, sec. 372. And where the mode of contracting is especially and plainly prescribed and limited, that mode is exclusive, and must be pursued, or the contract will not bind the corporation.” Dillon on Municipal corporations, section 373.

In the case of Addis v. Pittsburg, 85 Pa. St. 379 the court said: “The proper course for the city undoubtedly was to advertise and re-let the work, but the plaintiff preferred to go on with the work under his contract. He relied, it was offered to prove, on the assurance of the city'- engineer and street committee that he should be compensated for the extra work, but the city itself, much less any of its subordinate officers or committee, had no power to make an agreement to pay for such work; on the rule of quantum meruit we may regard that the plaintiff acted unadvisedly, but to assist him in this hard case would be laying the ax at the root of the system which imperatively requires all municipal work of this character to be done by the lowest and best bidder.”

It is true that the cases above referred to, apply to municipal corporations, but the principle therein announced seems to be equally applicable to the Board of Education in this case. In each case, the corporate power to contract and the manner in which contracts should be made, was specifically provided and limited by statute, and in these cases, the law is declared to be, that where such limitations exist, contracts made in violation of their provisions are null and void, and in such cases it would be a contradiction to hold that notwithstanding the contracts were void by reason 1 of legal limitations, the law will imply a promise to pay on the part of the corporation. Such a doctrine would absolutely destroy all the safe guards, found necessary to be thrown around such corporations as the appellee in this case, and leave the corporation subject to unlimited liability.

Upon the record in this case, the appellant is before this court insisting upon a recovery of three hundred dollars, on account of his employment to perform legal services for the appellee and he also insists that the law implies a promise upon the part of the appellee to pay the same. If the law raises an implied promise to pay this amount, the appellant might with equal force insist that it raised an implied promise to pay a still greater amount, and thus another provision of the statute requiring advertisement and bids before expenditures could be authorized to the amount of five hundred dollars, would be rendered void. This view of the law will not be sanctioned by this court. A member of the board of education in this Territory can not recover for the performance of duties required of him, nor for voluntary services of any kind, as a member of such board. Such member can not raise an obligation as against the board in any amount, by rendering gratuitous services. To enable such member do recover, if at all, he must perform services under a contract of employment. If he relies upon a verbal contract, to be valid, it must appear that the expenditure involved did not exceed two hundred dollars. Where no limit is fixed, or where the limit fixed is in excess of the sum of two hundred dollars, it must appear that the contract was in writing, otherwise it is void. In the case of individuals, a party may recover for valuable services rendered, regardless of the existence of a contract; it is only necessary that the party charged with liability, receive and appropriate the value of the services, or money, as the case may be, but a different rule prevails as to corpox-ations, such as the appellee in this case, which derives its power wholly from the statute, and whose power to contract and mode of contracting, is regulated and limited by the statute.

Counsel for appellant refers us to a number of cases in which a member of a school board was permitted to recover, under a quantum meruit, but an examination of these cases shows that the court held, that there was no limitation on the power to contract and where such is the case, a corporation is liable.

From the views herein expressed, it is apparent that the plaintiff was not entitled to recover upon the case made in the court below. The judgment of the court below will, therefore, be affirmed with costs.

Mills, C. J., and Parker, J., concur.