35 F.2d 301, 66 A.L.R. 735
In January 1924, the board of commissioners of Rockingham County, North Carolina, awarded a contract to the Luten Bridge Company for the construction of a bridge, with three commissioners voting in favor and two opposed.1
On February 11, 1924, one of the commissioners who had voted in favor, W. K. Pruitt, submitted his resignation to the clerk of the superior court, who accepted it and appointed W. W. Hampton as his successor.2 Pruitt attempted to withdraw the resignation but the clerk disregarded the withdrawal, and Pruitt along with the other two favorable commissioners ceased attending board meetings thereafter.3
Hampton, Martin, and Barber, the remaining commissioners, conducted the county's business over the following months, holding twenty-five meetings.4 At a called meeting on February 21, 1924, the board adopted a resolution declaring the bridge contract invalid and directing notice to the Luten Bridge Company to proceed no further.5 Subsequent resolutions on March 3, April 7, and in September reiterated the county's refusal to recognize the contract or pay for any work on the bridge, with the first such notice sent when only about $1,900 worth of work and materials had been performed or supplied.6
Despite these notices, the Luten Bridge Company continued construction.7 On November 24, 1924, the company filed suit against the county and the individual commissioners seeking $18,301.07 for work done through November 3.8 Three days later, Pruitt, Pratt, and McCollum filed an answer admitting the complaint's allegations without authorization from a properly convened board meeting.9 The newly elected board moved to strike this answer, but the district court denied the motion in 1927 and treated it as the county's answer.10
At trial, the court admitted the unauthorized answer into evidence, allowed proof of the contract value of work performed, and excluded all evidence of the resignation, Hampton's appointment, and the repudiatory resolutions.11 The jury returned a verdict for the full amount claimed, leading to this appeal by the county.12
Whether the answer filed by Pruitt, Pratt, and McCollum was the answer of the county?13
The governing board of a county can act only as a body and when in legal session as such. A majority of the board can bind the county only by action taken at a meeting regularly held.14
No. Pruitt, Pratt, and McCollum met casually at the county seat without notice to the other commissioners and without convening a regular, special, or properly called meeting under the statute, so their filing of an answer admitting liability did not constitute authorized action by the board as a body.15
The answer filed by Pruitt, Pratt, and McCollum was not the answer of the county and should have been stricken.16
Whether the resolutions to which reference has been made and the notices sent pursuant thereto are to be deemed action on the part of the county?17
The acts of a de facto officer will be held valid in respect to the public whom he represents and to third persons with whom he deals officially. This holds notwithstanding there was a want of power to appoint him. The rule applies even where the appointment suffered from a defect unknown to the public.18
Yes. After Pruitt's resignation was accepted, Hampton was appointed by the clerk, took the oath, and with Martin and Barber held twenty-five meetings over nearly ten months while conducting all county business, rendering Hampton a de facto commissioner whose participation with the other two created a quorum whose resolutions bound the county.19
The resolutions and notices are to be deemed action on the part of the county.20
Whether plaintiff, if the notices are to be deemed action by the county, can recover under the contract for work done after they were received, or is limited to the recovery of damages for breach of contract as of that date?21
After an absolute repudiation or refusal to perform by one party to a contract, the other party cannot continue to perform and recover damages based on full performance; the plaintiff must mitigate the damages.22
No. After the county sent notices while the contract remained executory that it would not recognize the contract or pay for the bridge, when only about $1,900 of work and materials had been performed or supplied, the Luten Bridge Company had no right to continue building and thereby increase damages by erecting a structure of no value to the county.23
The plaintiff is limited to the recovery of damages for breach of contract as of the date of the notices.24