The plaintiff seeks to recover upon an express contract with defendant, for the performance of labor and furnishing materials. The answer denies that any such contract as that declared upon was ever made. The answer, however inartificial and defective in other particulars, does specifically put the existence of the express contract declared upon by plaintiff in issue.
The plaintiff sought to sustain his case in the Court below by oral testimony, raising an impliedcontract. This was incompetent. The statute clearly defines the mode of making a contract by a Board of Supervisors, and without the observance of certain formalities required by statute, such as publishing for bids, & c., no contract entered into by a Board of Supervisors is of any validity. (See Statute of 1860, p. 46, sec. 12; Cond. R. vol. 6, p. 458; Christopher v. Mayor N. Y., 13 Barb. 558.)
In this case there is no evidence of any contract whatever. The only competent evidence of the acts of the Board, is the record of their proceedings. (See Taylor v. Henry, 2 Pick. 307; 6 Id. 6; Denning v. Roome, 6 Wend. 651; Wells v. Bartlett , 11 Mass. 477; State v. Grove, Martin, 43; State v. McAlpin, 4 Iredell, 140.)
No record of the acts of the Board of Supervisors was introduced in this case, and the nonsuit was properly granted.
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. and Norton, J. concurring.
OPINION
COPE, Judge
The plaintiff sues to recover the sum of $ 2,059.50, for work done and materials furnished in repairing a bridge, and alleges that the work was done and the materials furnished at the request of the Board of Supervisors. The twelfth section of the Act of 1860, concerning roads and highways in the counties of Humboldt, Napa and Siskiyou, empowers the Road Overseer to make contracts for purposes of this character; but provides that the building and repairing of bridges, when the estimated cost exceeds fifty dollars, shall be let by him at public auction, under the direction of the Board of Supervisors, to the lowest responsible bidder, after ten days public notice, etc. The effect of this provision is to limit the power of contracting in such cases to the mode thus pointed out; and this limitation applies as well to the Board of Supervisors as to the Overseer, and a contract made in any other manner is not binding upon the county. (Zottman v. City and County of San Francisco , 20 Cal. 66.) The plaintiff proved a request by the Board, accompanied by a promise to pay, but neither proved nor attempted to prove a compliance with the statute in awarding the contract, and it is clear that the proof was not sufficient to recover upon. He contends, however, that he was entitled to judgment upon the pleadings, and claims that none of the allegations of the complaint are put in issue by the answer. The complaint must be understood as averring a contract in accordance with the statute, and we think the answer sufficiently denies the making of such a contract. It is awkwardly drawn, and lacks in many respects the perspicuity and precision desirable in a pleading; but it denies in a plain and unequivocal form the making of any contract with the plaintiff. It admits a contract with the plaintiff and one Williston, and avers that this was the only contract made by the defendant in relation to the matter, and denies that the Board of Supervisors made any other. This was sufficient to put the plaintiff upon proof of the contract, and the evidence in the case did not entitle him to recover.
The judgment is affirmed.