#### Groton Bridge & Manufacturing Company *v.*Warren County.

Board of Supervisors. *Contracts. How made. Code*1892, *l*844.

A county is not liable for public work done under the authority of a single member o£ the board of supervisors, .since, by code 1892, $ 344, all contracts for such work must be made by the board as a board in open session, and be evidenced by entries on its minutes. *Board of Supm'visors*v. Patrick, 54 Miss., 240, cited.

From the circuit court of Warren county. ■

Hon. George Anderson, Judge.

The Groton Bridge, etc., Co., appellant, was plaintiff, and Warren county, the appellee, defendant in the court below.

In 1899 the board of supervisors of Warren county con-' tracted with the Groton Bridge & Manufacturing Company, for the rebuilding or repair of the Baldwin’s Ferry Bridge over Big Black River, according to plans and specifications on file in the office of the clerk of the board, the total cost of the work being $7,824.00. During the progress of the work it was discovered that one of the piers called for had to be made five feet higher than was specified in the contract, and acting upon the suggestion of the engineer of the board of supervisors, and the consent of one of its members, who agreed that the work should be done on “force account,” and that the board would pay for it, the Groton Bridge & Manufacturing Company did the additional work at a cost of $679.57. The board of supervisors was never asked to let this additional work, or have it done, nor did it over approve. the same, and disallowed the claim of $679.57 on account thereof, while promptly paying the contract price of $7,824.00. Thereupon this suit was brought for the $679.57 against the county upon a *quantum*meruit, and a demurrer to the plaintiff’s declaration having *215been sustained, and judgment rendered in favor of tbe defendant, this appeal was prosecuted. The code provision controlling the case is quoted in full in the opinion of- the court.

*Green & Green,*for appellant.

The additional work, which was necessary to the preservation of the county’s property, constituted a part of the entire work which was approved and accepted by the board of supervisors, and there necessarily arose an implied obligation to pay for it. It is conceded that express contracts must be evidenced by entry on the minutes of the board, but this requirement has no application to liabilities that arise by implication, and which should be enforced upon a *quantum meruit.*

The cases of *Supervisors*v. *Patrick,*54 Miss., 240; *Dixon*v. *Greene County,*76 *lb.,*794, and *Crump*v. *Colfax County,*52 *lb.,*107, while holding that all express contracts must be evidenced by entry on the minutes of the board, recognize the power of the board to contract by adoption or ratification, and in one of them *(Crump*v. *Colfax County)*the liability of the county for the rent of rooms under a count of *quantum valebat*was enforced, although the contract in respect thereto was void because not entered on the minutes of the board. See, also, the following authorities in support of the position above taken: *Carroll*v. *Board of Police,*28 Miss., 49; 7 Am. *&*Eng. Enc. Taw (2d ed.), 945, 946, 953, 954; *City*v. *Litchfield Water Co.,*95 111. App., 647; *Jackson Electric By. Co.*v. *Adams,*79 Miss., 408, s.c., 30 So. Bep., 694.

*B. V. Booth,*for appellee.

Under the statutes and decisions of this state the facts stated ■in the declaration imposed no liability upon the county. No -contract for the additional work was made by the supervisors as a board in open session, nor was any such contract evidenced by entry on their minutes. Code 1892, §§ 340, 344; *Supervisors*v. *Patrick,*54 Miss., 240; *Supervisors*v. *Arrighi, lb.,**216670; *Beclc*v. *Allen,*58 *lb.,*158; *Bridges & Hill*v. *Supervisors, lb.,*819; *Howe*v. *Stale,*58 *lb.,*69; *Stale*v. *Vice,*71 *Lb.,*916.

Wiiiteieud, C. J.,

delivered the opinion of the court.

The arrangement made through one member of the board was void. *Board*v. *Patrick,*54 Miss., 240, controls this case. In the note to *Gilman*v. *Contra Costa County,*68 Am. Dec., 292, it is said, speaking of a contract informally made: “It may be ratified at a subsequent meeting of the board in legal session, and the county thus become liable;” citing three authorities. But no such ratification of the board in open session was obtained by the appellant in this case. In 7 Am. & Eng. Enc. Law (2d ed.), p. 946, it is said that “such liability on an implied contract will not attach where an express contract only is contemplated by statute;” citing, in note 2, *Wollcot*v. *Lawrence County,*26 Mo., 272; *Lehigh County*v. *Kleckner,*5 Watts & S., 181. In the former case the court say: “The county court is only the agent of the county, and, like any other agent, must pursue its authority, and act within the scope of its power. In respect to many things that concern the county, it has a large discretion; but in reference to the erection of county buildings its authority is defined by a public law, and is special and limited. It cannot act like general agents, whose acts may bind their principals if performed within the general scope of their agency, though in violation of private instructions unknown to those who deal with them, for it has no power over the subject except such as is given by law; and every person who deals with the county court, acting in behalf of the county, is bound to know the law that confers the authority. There is no difference in this respect between public and private agents, and if the county court exceeds its special and limited authority, conferred by the statute, in a material matter, the county will not be bound. The act concerning county buildings (Bev. St., 1845, p. 286) regulates the whole subject. The *217manifest policy of the act was to prevent the embarrassment of counties by tbe erection of buildings more costly than tbeir necessities require, and the incurring of liabilities beyond tbeir ability to pay. Tbe first step to be taken by tbe county court before proceeding to tbe erection of county buildings is to ascertain tbat sufficient funds are in tbe treasury unappropriated, or that tbe circumstances of the county otherwise permit; and then to make an order appropriating a certain sum for tbe purpose, which shall cover tbe maximum cost; and tbe contract price cannot exceed tbe amount appropriated. This provision was evidently suggested by tbe universal experience tbat tbe cost of public works generally exceeds tbe estimate, and there would be no safeguards for tbe funds or credit of a county if the public buildings were let out to be built by contract, and tbe price left to be determined according to tbe value of tbe work after its completion. . . . This law is tbe warrant of attorney to the county court. All its provisions are plain; and tbe contractor, before be undertakes tbe work, as be deals with an agent whose powers and duties are prescribed, ought to see tbat tbe agent is pursuing its authority; for tbe agent cannot bind tbe county except as it is commanded or permitted to do. If tbe agent of a private person produced to a builder a power of attorney authorizing him to contract for building a bouse of certain dimensions, and tbe cost not to exceed a given sum, and in tbe face of his authority should contract for a bouse of a different kind at a greater cost, no one would pretend tbat tbe contract would bind tbe principal unless be subsequently ratified it; and it is only tbe application of this familiar rule tbat we apply to this case. If any effect is to be given to tbe law at all, its plain directions must be followed, and to allow a manifest departure from them would not only be a violation of an established rule tbat governs tbe relation 'of principal and agent, but would remove all tbe restrictions which the law has imposed upon tbe county court in contracting debts to be paid by the county. The petition in this case does *218not aver a contract of any kind with tbe county court, but tbe plaintiff seeks to recover upon a *quantum meruit.*In our opinion tbe county is not liable upon an implied promise. The acceptance of the building by the county court did not help the plaintiff, for the ratification must come from the principal. *Delafield*v. Illinois, 2 Hill, 175.” See specially note to *Gilman*v. *Contra Costa*County, 68 Am. Dec., 292, 293. Section 344 of the code of 1892 is express in its provision that “a board of supervisors shall not empower or authorize any one or more members of such board, or other person, to let or make contracts for the building or erection of public works of any description, or for working public roads, in vacation or during the recess of said board; but all such contracts shall be made and approved by said board in open session.” It is plain from this that a county cannot, as to the subject-matter covered by § 344, be bound by an implied contract. The very purpose of this statute was to cut off entirely any possibility of fraudulent claims for extra work done and materials furnished, and it limits the board of supervisors to express contracts in respect to the subject-matters embraced in the statute, made in the mode pointed out. We think, as we have heretofore held in *Board*v. *Patrick,*supra, and *Dixon v. Greene*County, 76 Miss., 794 (25 So., 665), that a board may, by a new contract, or an amendment of its original contract, or by a ratification (all of which must be by acts of the board in open session, spread upon its minutes), bind the county to pay in each of the cases named. And parties contracting with the counties are charged with knowledge of this statute, and unless they pursue the terms of the contracts made in pursuance of § 344, or, in case of extra work or labor for the board, amend the contract or ratify one informally made, in accordance with § 344, no recovery can be had against the county. The manifest purpose of the statute was that the county should be bound by the contract of tbe board, as a board, in open session, and spread upon its minutes. The appellant here has not pursued the course marked out in *219*Board*v. *Patrick,*and, in the absence of any amendment to its original contract, or ratification of the one informally made, has sued at law, and must, of course, fail, as held in that case, which controls here.

*Affirmed.*