Griffith, J.,
delivered the opinion of the court.
On November 6, 1933, appellant, a highway construction contractor, entered into a detailed contract with
appellee, the' State Highway Commission, to construct a link in a primary state highway in Harrison and Stone Counties, the contract providing that the work should be promptly entered upon by the contractor and within 10 days, and should be completed within 200 working days, after the issuance by the Commission of the work order.
Among the stipulations of the contract was the obligation on the part of the Highway Commission to procure and furnish all necessary rights of way for use in constructing the roadway and its structures and appurtenances. No question has been raised as to the validity of the contract or as to its obligatory effect in all its parts.
On November 7, 1933, the Commission issued its work order, and within the time aforesaid the contractor entered upon, and thence diligently prosecuted, the actual performance of the work; but as to certain portions of the link to be covered in the performance of the contract, the Commission failed to furnish the rights of way, so that the contractor could not go forward with that part of the work. These rights of way were not in fact furnished until April 13, 1934, or not until 105 days of the stipulated 200 working days had elapsed.
The progress made by the contractor on that portion of the link to which the right of way was promptly furnished, taken together with the actual progress made and the days necessarjr for completion of the whole project after the delayed rights of way were obtained1, showed that had all the rights of way been furnished within a reasonably prompt time, the entire work in all its parts would have been completed and ready for final acceptance not later than August 18, 1934; but solely because of the said failure of the Commission, the work was not completed until December 11, 1934.
The contract provided that for all times after entering upon the work and until it had been entirely completed in all its parts and ready for acceptance, and for
an additional period of 30 days thereafter, the contractor shall maintain the work in first-class condition at his own cost and expense, and that the cost shall include the engineering expense of the Commission in superintending the said maintenance. The work was not accepted by the Commission as finally completed and the contractor was not released from maintenance until January 11, 1935, when as aforesaid, this release should and would have been as of date September 18', 1934, had the Commission complied with its obligation to furnish the right of way with reasonable promptitude.
The suit is by the contractor to recover the expenses paid out by him in the maintenance of the work from September 18, 1934, to January 11, 1935, proximately caused by the said breach of the contract by the Commission, amounting to $11,639.53, including engineering expenses of $973.41, which latter item was charged to the contractor and deducted from his final estimate, as will be hereafter mentioned. These maintenance expenses are all itemized and disclosed by exhibits filed with the bill. We do not pursue the details of the bill further than to add that it states a good cause of action.
I. To the bill the Commission interposed a plea of accord and satisfaction, and by agreement of the parties this plea was separately heard in advance. The plea was sustained by the court. This plea is to the effect that upon the final acceptance of the work by the Commission, it made a full and final payment to the contractor for said work, under what it has termed its “Final Estimate,” upon which final estimate the state treasurer’s check was delivered to the contractor for the full amount of that estimate, which check was accepted, and indorsed by the contractor, and the proceeds thereof were obtained and retained by him.
The check which was delivered to' the contractor contains no recital that it is in full or final payment; but the Commission takes resort to the requisition for the check made upon the State Auditor. This requisition
cites that the amount therein specified is “full settlement of claims and accounts listed herein which' have been approved by the Mississippi Highway Commission,” and accompanying the requisition is what is denominated a “Final Estimate,” which estimate is drawn out into a complete itemized statement of what the requisition is for, of which items not a single one covers, or has reference in any way to, the items for which this suit, is brought, save only the item of engineering expenses.
The authorities seem agreed everywhere that, when a remittance is sent or deliverd in full of an annexed or enclosed itemized statement of account, or in full of enclosed or annexed invoices, or in full of any particularly itemized or otherwise particularly designated claim or demand, the accord and satisfaction extends only to the particular or particularized account, statement, invoice or demand so pointed to or designated, and not to any other item, or claim or liability, although growing out of the same matter or transaction. Many cases to this effect are cited, 1 C. J. S. Accord and Satisfaction, pages 533, 534, section 34; and the rule, in substance, is supported in Enochs v. Delta Cotton Oil Co., 139 Miss. 234, 104 So. 92. The effect of an accord and satisfaction cannot be extended by mere inference, as is sought to be done here; wherefore the said plea should have been denied.
II. The second and far more important question is whether the State Highway Commission is liable to suit upon items in the nature of those involved in appellant’s demand; in other words and more specifically, whether the Commission is liable to suit by the contractor for the breach of a specific provision of a definite and particular road construction contract, the breach and its proximate consequences having occurred during and directly in and about the actual work of the performance of the contract.
There is invoked for the Commission the familiar doc
trine that the state and its subdivisions and agencies are not liable to suit in the courts unless thereunto authorized by statute. To that rule we propose to make no exception in this case, as the rule actually already exists, when carefully examined and properly understood; we do not propose to extend or limit it by construction, save as it has already been established in reason and by the best considered cases.
The statutes dealing with the powers, duties and functions of the State Highway Commission distinctly authorize the Commission “to construct, reconstruct, and maintain, at the cost and expense of the state all primary highways,” Code 1930, section 4999', and the Commission is furnished with a large fund, previously appropriated and set aside to it and under its control, without the necessity of any specific subsequent appropriation to cover any particular or specific road contract.
Free access — add to your briefcase to read the full text and ask questions with AI
Griffith, J.,
delivered the opinion of the court.
On November 6, 1933, appellant, a highway construction contractor, entered into a detailed contract with
appellee, the' State Highway Commission, to construct a link in a primary state highway in Harrison and Stone Counties, the contract providing that the work should be promptly entered upon by the contractor and within 10 days, and should be completed within 200 working days, after the issuance by the Commission of the work order.
Among the stipulations of the contract was the obligation on the part of the Highway Commission to procure and furnish all necessary rights of way for use in constructing the roadway and its structures and appurtenances. No question has been raised as to the validity of the contract or as to its obligatory effect in all its parts.
On November 7, 1933, the Commission issued its work order, and within the time aforesaid the contractor entered upon, and thence diligently prosecuted, the actual performance of the work; but as to certain portions of the link to be covered in the performance of the contract, the Commission failed to furnish the rights of way, so that the contractor could not go forward with that part of the work. These rights of way were not in fact furnished until April 13, 1934, or not until 105 days of the stipulated 200 working days had elapsed.
The progress made by the contractor on that portion of the link to which the right of way was promptly furnished, taken together with the actual progress made and the days necessarjr for completion of the whole project after the delayed rights of way were obtained1, showed that had all the rights of way been furnished within a reasonably prompt time, the entire work in all its parts would have been completed and ready for final acceptance not later than August 18, 1934; but solely because of the said failure of the Commission, the work was not completed until December 11, 1934.
The contract provided that for all times after entering upon the work and until it had been entirely completed in all its parts and ready for acceptance, and for
an additional period of 30 days thereafter, the contractor shall maintain the work in first-class condition at his own cost and expense, and that the cost shall include the engineering expense of the Commission in superintending the said maintenance. The work was not accepted by the Commission as finally completed and the contractor was not released from maintenance until January 11, 1935, when as aforesaid, this release should and would have been as of date September 18', 1934, had the Commission complied with its obligation to furnish the right of way with reasonable promptitude.
The suit is by the contractor to recover the expenses paid out by him in the maintenance of the work from September 18, 1934, to January 11, 1935, proximately caused by the said breach of the contract by the Commission, amounting to $11,639.53, including engineering expenses of $973.41, which latter item was charged to the contractor and deducted from his final estimate, as will be hereafter mentioned. These maintenance expenses are all itemized and disclosed by exhibits filed with the bill. We do not pursue the details of the bill further than to add that it states a good cause of action.
I. To the bill the Commission interposed a plea of accord and satisfaction, and by agreement of the parties this plea was separately heard in advance. The plea was sustained by the court. This plea is to the effect that upon the final acceptance of the work by the Commission, it made a full and final payment to the contractor for said work, under what it has termed its “Final Estimate,” upon which final estimate the state treasurer’s check was delivered to the contractor for the full amount of that estimate, which check was accepted, and indorsed by the contractor, and the proceeds thereof were obtained and retained by him.
The check which was delivered to' the contractor contains no recital that it is in full or final payment; but the Commission takes resort to the requisition for the check made upon the State Auditor. This requisition
cites that the amount therein specified is “full settlement of claims and accounts listed herein which' have been approved by the Mississippi Highway Commission,” and accompanying the requisition is what is denominated a “Final Estimate,” which estimate is drawn out into a complete itemized statement of what the requisition is for, of which items not a single one covers, or has reference in any way to, the items for which this suit, is brought, save only the item of engineering expenses.
The authorities seem agreed everywhere that, when a remittance is sent or deliverd in full of an annexed or enclosed itemized statement of account, or in full of enclosed or annexed invoices, or in full of any particularly itemized or otherwise particularly designated claim or demand, the accord and satisfaction extends only to the particular or particularized account, statement, invoice or demand so pointed to or designated, and not to any other item, or claim or liability, although growing out of the same matter or transaction. Many cases to this effect are cited, 1 C. J. S. Accord and Satisfaction, pages 533, 534, section 34; and the rule, in substance, is supported in Enochs v. Delta Cotton Oil Co., 139 Miss. 234, 104 So. 92. The effect of an accord and satisfaction cannot be extended by mere inference, as is sought to be done here; wherefore the said plea should have been denied.
II. The second and far more important question is whether the State Highway Commission is liable to suit upon items in the nature of those involved in appellant’s demand; in other words and more specifically, whether the Commission is liable to suit by the contractor for the breach of a specific provision of a definite and particular road construction contract, the breach and its proximate consequences having occurred during and directly in and about the actual work of the performance of the contract.
There is invoked for the Commission the familiar doc
trine that the state and its subdivisions and agencies are not liable to suit in the courts unless thereunto authorized by statute. To that rule we propose to make no exception in this case, as the rule actually already exists, when carefully examined and properly understood; we do not propose to extend or limit it by construction, save as it has already been established in reason and by the best considered cases.
The statutes dealing with the powers, duties and functions of the State Highway Commission distinctly authorize the Commission “to construct, reconstruct, and maintain, at the cost and expense of the state all primary highways,” Code 1930, section 4999', and the Commission is furnished with a large fund, previously appropriated and set aside to it and under its control, without the necessity of any specific subsequent appropriation to cover any particular or specific road contract. The Commission is given full and exclusive power to determine the detailed location, the plans and specifications and the type or kinds of material to be used, and to make contracts to cover in full and in every detail all state road construction projects, and to supervise the execution of those contracts. And the Commission is proclaimed by the statute, in broad and general terms, as a “body corporate, and as such may sue and be sued, plead and be impleaded, in any court of justice having jurisdiction of the subject matter of any such suit.” Code 1930, section 5006.
The Commission admits, as it must admit, that under these statutes, Code 1930, section 5006, the Commission is subject to suit by a contractor for any failure by the Commission to pay the contractor for any labor done or material furnished by the contractor under and in accordance with the terms of his contract with the Commission for road construction work at the sums or prices specifically stipulated in the contract; but the Commission contends that beyond that precise and narrow limitation, no suit can be maintained against it by the con
tractor, although further sums are due to the contractor as the proximate result of a breach of the contract by the Commission, and although the breach occurred during and directly in and about the actual work of the performance of the contract. The commission admits that it may be sued for its breach of the contract if it failed to respond to its obligation by payment under some of the provisions of the contract, but denies liability to suit for its failure to respond as to breaches by it of other material parts of the contract, although occurring during the course of the same piece of work. To this contention, as thus stated, we cannot give our assent as being a correct interpretation of the law.
It is all very well that the state and its subdivisions and agencies shall not be held as within that wide field of legal liability in contract and in tort which embraces the manifold activities of private persons and corporations. Such a liability would unbearably tax the supervisory powers of any superior official personnel within the reasonable reach of the taxpayers to maintain. It is all very well, therefore, that the doctrine of respondeat superior shall not apply to the state for tortious wrongs committed by any officer or agent of the state although at the time acting in behalf of the state, and that in such cases the sufferer shall be remitted to his remedy against the individual tort feasor. And likewise as to its contracts of a general nature made for the general public or for a group of the public as the beneficiaries, when the attempted suit is by one of that public, — and as to all situations within like reason.
But these considerations can have no just application to a construction contract made with an individual contractor, for the construction or reconstruction of a particular building, or levee or canal, or road, and when the details, — the work to be performed, the materials to be furnished, the manner of performance, and all the mutual obligations of the parties thereinabout,- — are set out in the contract, and the contractor, at the express di
rection of the authorized agency, has actually entered upon the particular work embraced in the contract. There the required supervision during performance, the necessary watchfulness over it, is focused into a narrow and strictly localized situation wherein the difficulty of strict performance by the state of its contract obligations made with the particular contractor for that particular work and in the course thereof is no greater, nor harder faithfully to comply with, and the consequence of a breach is no harder to foresee than had the contract been between private persons. No public policy there intervenes to excuse the state from its contract obligations and for the proximate consequences of its breach thereof; and so we hold that, in such a case, the state is as if a private contracting party, with the same rules of liability to be applied; and when, as here, the state creates an agency for the construction of buildings, or roads or the like, and gives to that agency the dignity of a body corporate; authorizes it to make the particular construction contracts, such as here in question; empowers it to supervise the execution thereof and to pay for the same out of funds supplied into the hands of said agency, and finally allows it, in broad and general terms, to sue and be sued, then that ag’ency must stand in a suit by the contractor in all matters respecting the performance of its contract, and as to breaches of it during the course of such performance as if the agency were a private party, and in accordance with the general law of contracts, whereunder any compensatory damages to the contractor for a breach of the contract by the other party becomes a part of the cost of the services rendered under that contract.
A case strikingly similar to the case here before us, both upon the facts and in points of law, is State v. Feigle (Ind. App.) 162 N. E. 55, affirmed 204 Ind. 438, 178 N. E. 435. We are in accord with the holdings in that case. See, also, People v. Sohmer, Comptroller, 207 N.
Y. 450, 101 N. E. 164; and the authorities cited in those cases. In the latter case, the court said:
“The sovereign can contract and has very many occasions to do so; it can build canals and public buildings and engage in public works and, in carrying forward its projects it makes use of the instrumentalities which individuals use for the same purposes. It must be governed by the same rules of common honesty and justice which bind individuals. It is for its interest that its contract should be binding upon all the parties thereto. If it can at pleasure violate its contracts, in the absence of any stipulation authorizing it to do so, there will be such uncertainty and risk attending 'all its contracts that it will go into the market for work and materials at a great disadvantage. As was well said by Judge Allen in People v. Stephens, 71 N. Y. [527] 549: ‘There is not one law for the sovereign and another for the subject, but when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, whenever the contract in any form comes before the courts the rights and obligation of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the dealer, contractor, and suit- or.’ ”
Appellee has relied chiefly on two cases, Board of Sup’rs of Lee County v. Payne, 175 Miss. 12, 166 So. 332, and Mississippi Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517. In the opening paragraph of the second division of the present opinion and in stating the question now before us, the Payne Case was sufficiently differentiated; for in that case the court was careful to point out more than once during the course of the opinion that there no part of the contract was performed or was in the course of performance by the contractor when the breach is charged to have occurred, and we have herein discussed the pertinency of that distinguish
ing feature. The Luderbach Case was decided under a special statute, Laws 1918, c. 241, enacted under exceptional circumstances, and was precisely limited in its terms to suits “for material contracted for by, or furnished to said [Exposition] company.” The statute was rather strictly construed and was held not to include a part of the material to be used in the performance of the contract, when the only contract was for a completed installation. The special statute did not, in general terms, authorize the Exposition Company to be sued, but limited the right to specified matters of which a breach of contract was not one. That case, when closely examined, furnishes no substantial aid one way or another on the issue now before us.
We must note finally that the bill also includes claims alleged to have arisen out of road contracts on three other projects. Inasmuch as what has been above said in regard to the Harrison-Stone contract will furnish a guide as to the others, we do not discuss the latter beyond this mention of them.
Reversed and remanded.