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Worrell v. Jurden

April 1913


Appeal from the Fourth Judicial District Court, Clark County; E. J. L. Taber, Judge.

Stevens & Van Pelt, for Appellant.

F. R. McNamee, for Respondent.

By the Court, Norcross, J.:

This is an appeal from the judgment and from an order denying defendant's motion for a new trial. Action was brought by the plaintiff to recover the sum of $2,317, balance alleged to be due for certain goods, wares, and merchandise sold and delivered to defendant between the 29th day of May, 1910, and the 9th day of February, 1911, and for work and labor performed in and about the installation of certain of the said goods, wares, and merchandise in a building constructed by the defendant. The case was tried before Judge E. J. L. Taber without a jury, and judgment was awarded in favor of plaintiff in the sum of $2,217.78 and costs.

1. The only question presented upon appeal is whether the contract sued upon is void, as alleged in defendant's answer, under the provisions of section 37 of an act entitled “An act to provide for a reorganization of the system of school supervision and maintenance,” etc., approved March 29, 1907 (Stats. 1907, p. 388), which section reads: “No trustee shall be pecuniarily interested in any contract made by the board of trustees of which he is a member.”

It appears from the evidence that upon the 26th day of March, 1910, the defendant, appellant herein, was awarded the contract for the construction of a schoolhouse for Las Vegas school district in Clark County, upon his bid for the construction of the same for the sum of $27,706; he being deemed the lowest and best bidder by the board of school trustees of said district. At the time of the acceptance of appellant's said bid, and at all times mentioned in the action, the plaintiff, respondent herein, was a regularly elected, qualified, and acting member of the board of school trustees of said district. It is not contended that at the time the contract was awarded to appellant for the construction of said

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school building respondent was in any way interested in said contract, or that there was any understanding between appellant and respondent that the latter should furnish any labor or material in the construction of said building. A great many authorities have been cited by counsel for appellant in support of his contention that the contract sued upon is void. Practically all of these cases were considered by the learned judge in an elaborate opinion rendered in deciding the case in the court below. Many of the authorities cited are based upon statutes differing in material respects from the statute under consideration in this case, and in most, if not all, the cases in which a right to recover has been denied the officer was directly or indirectly interested in the contract at the time the same was awarded. We shall not attempt to distinguish this case upon fact from the many cases that have been cited. There are but one or two cases in which the facts are substantially similar to the case at bar.

The court below based its decision upon the recent case of Escondido Lumber Co. v. Baldwin, 2 Cal. App. 606, 84 Pac. 284. A rehearing was applied for in the Escondido case before the Supreme Court of California, which was denied; thus the decision has the approval of all the courts of California. The statute involved in that case is also more nearly like ours than any other to which our attention has been called. From the Escondido case we quote the following: “From the record it appears that G. V. Thomas was on July 12, 1904, one of the trustees of the Escondido school district, and at the same time was a stockholder in and director and general manager of the plaintiff corporation; that on said date the school district entered into a contract with one S. M. Stewart to construct a schoolhouse for the sum of $750; that Stewart was at the time solvent and with means to pay for the materials necessary for use in such house otherwise than from money to arise upon such contract; that when said contract was entered into no agreement, express or implied, existed between Stewart and said trustees, or either of

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them, with reference to the furnishing of the materials, or any portion of them, necessary for use in such construction; that after the execution of such contract, Stewart purchased from plaintiff corporation certain of the lumber used in said building and said Thomas knew of its intended use when delivered. The schoolhouse was regularly and properly constructed, and by said trustees accepted. * * * The refusal of the school superintendent to draw such requisitions is based on the proposition that the contract was void because in violation of section 1876 of the political code, which reads: ‘No school trustee or member of any board of education must be interested in any contract made by the board of which he is a member; and any contract made in violation of this provision is void.' This contention is untenable. The contract was valid under the findings of the court when executed. The mere fact that the contractor, without a previous arrangement or agreement, saw fit to buy of a corporation for which one of the trustees was an agent certain materials used in the construction of the house would not render the contract void, voidable, or ordinarily subject it to merited criticism. The only possible conflicting interest which could in any sense be said to exist, whereby the trustees' act could be influenced, would be in connection with the acceptance of the building when completed. But it is not pretended or claimed that the building was not properly constructed, from which the formal acceptance would be imperative. It must be borne in mind that the plaintiff corporation had no particular interest in the acceptance of the house. It had a claim against a solvent purchaser of the lumber. It was not necessary for it even to serve the statutory notices which are said to amount to an equitable garnishment under the lien law. We are unable to perceive even a slight interest on the part of a stockholder of plaintiff corporation, as was the case in Wickersham v. Crittenden, 93 Cal. 29, 28 Pac. 788. The Supreme Court of the United States in Bank v. Owens, 2 Pet. 529, 7 L. Ed. 508, has said that ‘no court of justice

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can in its nature be the handmaid of iniquity.' That office would be performed were the court, under the circumstances of this case, to refuse its aid in enforcing the demands of a ‘laborer worthy of his hire' against a public corporation, which has received all to which it was entitled, and which seeks to avoid the payment of an honest obligation on account of a mere surmise that the possibility of profit from a subsequent independent contract had an influence upon the minds of the officials connected with the execution of the original contract. ‘A bare suspicion that under the stimulus of such a contract a party might do some prohibited act would not be sufficient to justify a court in declaring it void. There must be something in it to indicate that its natural tendency would be to produce such an effect.' (Casserleigh v. Wood, 14 Colo. App. 274, 59 Pac. 1028.)”

In this case, like in the Escondido case, the material and labor furnished by the respondent to the appellant was satisfactory. There was some dispute between the board of school trustees and the appellant relative to other portions of the work which under the contract was submitted to arbitration, but no such question involved that portion of the work performed or material furnished by the respondent. It must be conceded that the question presented in this case is a close one, but it seems not to have entered into the consideration of appellant that, if the contract between himself and respondent was void, his own contract with the board of school trustees, at least to the extent of the work and labor performed by respondent, would be subject to the same infirmity. Some of the argument indulged in by the counsel for appellant, to the effect that there was evidence indicating a prior understanding between appellant and respondent such that the respondent was an interested party at the time the contract was executed between the board of school trustees ...

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