For the reasons stated in the opinion, the judgment on the main bill of exceptions is reversed, and the judgment on the cross-bill is affirmed.
This litigation arose on October 10, 1950, when Fulton County filed a suit in equity against James T. Malcom. The petition alleged that the defendant had unlawfully entered upon and was wrongfully cutting and removing valuable timber from the plaintiff's land. The prayer was for an injunction, temporary and permanent, to prevent a continuation of the trespass. The defendant interposed general and special demurrers to the petition and, subject thereto, filed an answer. His answer denied that the act complained of was wrongful and averred that he purchased the timber from the plaintiff; that he paid the plaintiff for it in full; and that he was cutting and removing it pursuant to his purchase and under the terms of his conveyance. The court overruled the general demurrer, some of the special demurrers, and sustained others. To the judgment sustaining some of the special demurrers, the plaintiff excepted pendente lite, and error is assigned thereon in the cross-bill of exceptions. The plaintiff subsequently amended its petition and alleged that the contract of purchase relied upon by the defendant, and under which he claimed a right to do the act complained of, was null and void for several stated reasons, and prayed that it be canceled. He renewed his demurrers to the original petition and urged them to the petition as amended, and also demurred further to the petition as amended upon both general and special grounds. To a judgment overruling these demurrers, the defendant excepted pendente lite and assigned error thereon in the main bill of exceptions. He filed two other amendments to his original answer, averring defensively occurrences which had transpired since the suit was filed.
In support of the pleadings as they stood when the case came on for trial, the parties introduced the following evidence: The fiscal affairs of Fulton County are governed by a board of five county commissioners, known as the Board of Commissioners of Roads and Revenues. At the time this suit was instituted, Fulton County owned a boundary of land near Adamsville, containing about 2500 acres, which are known as the Botanical Gardens and Utoy Boulder Park properties, and upon about 300 acres of which there was valuable timber. The Board of County Commissioners for Fulton County, at a meeting held on September 7, 1950, decided to sell all land and timber of the county unserviceable for county purposes. Charlie Boynton, the county's land agent, was authorized to accept bids for the timber on the county's tract near Adamsville, and was directed to report them to the board for consideration and disposition. At a meeting of the board on September 18, 1950, as its minutes show, Boynton reported that he had a bid of $30,500 from James T. Malcom for all standing timber ten inches or more in diameter at the butt on the county's land located on the lefthand side of Gordon road just beyond Adamsville, embracing the area of the Botanical Gardens and the Utoy Boulder Park properties. In addition to his cash offer of $30,500, Malcom agreed to furnish the county, without cost to it, 55,000 feet of oak lumber for bridge uses, and to remove all tree-laps and other debris from certain portions of the tract. By resolution duly entered upon its minutes, which recited that the timber for which it had an offer from Malcom was neither used nor useful for county purposes, the board by a majority vote, accepted Malcom's offer and directed the county attorney to prepare and present to it a proper contract of conveyance. A contract was drawn by the county attorney in accordance with the offer made by Malcolm and as accepted by the board. It was presented to and signed by Malcom, who at the time' of signing paid the full amount of his cash offer by cashier's check. At a special meeting of the board during the morning of October 4, 1950, the county attorney read the contract which he had prepared, and which Malcom had signed, to the county commissioners, omitting to read boundary descriptions of the land upon which the timber was located. Before the contract was approved and signed, the county attorney stated to the members of the board that it would be necessary for the contract to recite the board's action of that date, and after the contract was signed, the words, "And the minutes of the meeting of said board held October 4, 1950,"
were inserted by the county attorney. By resolution duly entered upon its minutes, the board, by a majority vote, approved and ratified the contract presented, and authorized and directed its chairman to execute it for and on behalf of the county. It was then signed, "Fulton County, a political subdivision of Georgia, By James H. Aldredge (Seal)," and delivered to the clerk of the board for record upon its minutes. At a meeting on October 6, 1950, after discussing offers for the timber in question which had been received after the contract of purchase and sale to Malcom had been approved, ratified, executed and delivered to its clerk for record, and by resolution duly entered upon its minutes, the board unanimously voted to "reconsider the sale of the county-owned timber located at Adamsville." At this point in the meeting, as the minutes show, "Commissioner Camp stated he would like to have a ruling from the county attorney on the matter, inasmuch as the board had already approved the contract between Fulton County arid James T. Malcom and had authorized the chairman to execute said contract." The county attorney then advised the board that Malcom's contract would not be binding until recorded upon its minutes. The board then, as its minutes show, unanimously voted to rescind the contract with Malcom, instructed its clerk not to record it in the minutes, and directed the county treasurer to refund to Malcom the money he had paid for the timber. The board promptly notified Malcom of its action. Upon a tender of the money to Malcom, he refused to accept it. Malcom, on October 9, 1950, notified the board that he had entered upon its land for the purpose of cutting and removing his timber, and requested specifications for the lumber he was obligated to furnish the county. He continued to cut and remove the timber until he was, on October 10, 1950, restrained by court order from doing so. Subsequently, Malcom brought mandamus in the Superior Court of Fulton County against the members of the board of county commissioners and its clerk, and prayed that they' be required to record his contract on the board's official minutes. While these two proceedings were pending and on February 6, 1951, A. L. Henson as counsel for the defendant Malcom, by letter, asked the board of commissioners to stipulate" that the timber involved was not useful for county purposes. By the same letter, he again asked the board to affix the county's official seal to the timber instrument which had been previously signed, and that the instrument be then delivered to his client Malcom. His letter stated: "By so doing the merits of these law suits will be clarified and the court will then be in a position to determine whether or not the instrument should be recorded upon the minutes of the board." At a special meeting of the board held on February 7, 1951, Commissioner Hailey moved that Mr. Henson's request be granted. His motion was seconded by Commissioner Towns. Mr. Wright, assistant county attorney, after reading Henson's letter, advised the commissioners that it was all right to grant Henson's request. Hailey's motion was passed by a majority vote, as the minutes show, and the board's clerk was thereby directed to place the county's seal on the contract and deliver it to A. L. Henson, the legal representative of James T. Malcom; and such was accordingly done on February 7, 1951. The relief sought by Malcom in his mandamus proceeding was later granted by the court, and the contract was pursuantly recorded in the minutes of the board of county commissioners on February 4, 1952. The contract, by express terms, conveyed to Malcom all standing timber, ten inches or more in diameter at the butt, upon the land described in the contract of conveyance. The parties stipulated that the land upon which the timber in question is located belonged to Fulton County, and the evidence shows without dispute that the timber was not serviceable for any county purpose.
A jury, on February 29, 1952, found that a permanent injunction should be granted as prayed for, and that the contract was void and should be canceled. A decree was accordingly entered. The defendant, in due time, moved for a new trial, and afterwards amended his motion by adding twenty special grounds, which, after being heard, were overruled. The defendant excepted and sued out a writ of error, assigning error upon his pendente lite exceptions and upon the judgment overruling his motion for a new trial as amended.
1. There is no merit in the contention that the court erred in overruling the general demurrer to the plaintiff's petition as amended. All contracts made for and on behalf of a county by its board of county commissioners must be in writing and entered on its minutes. Code, 23-1701; Board of Commissioners of Morgan County v. MacDougald Construction Co., 157 Ga. 595 (122 S. E. 317); Graham v. Beacham, 189 Ga. 304 (5 S. E. 2d, 775). "If they are not in writing and not so entered, they are not enforceable." In this case, the petition as amended alleges that the defendant, as his authority and for his right to cut and remove timber from the plaintiff's land, relied upon a contract with the Board of County Commissioners of Fulton County, which at that time had not been recorded on the board's official minutes, and it is well settled in this State that such a contract is unenforceable until so entered. James v. Douglas County, 131 Ga. 270 (62 S. E. 185); Spears v. Robertson, 170 Ga. 368 (152 S. E. 903); Griffin v. Maddox, 181 Ga. 492 (182 S. E. 847); Hobbs v. Howell, 204 Ga. 370 (49 S. E. 2d, 827). Accordingly, the defendant's general demurrer to the petition as amended was properly overruled.
2. County property which has become unserviceable may be sold by order of the county commissioners at private sale. Code, 91-602, 91-804; Head v. Lee, 203 Ga. 191 (4) (45 S. E. 2d, 666). And such property becomes unserviceable, within the meaning of our statute, when it cannot be beneficially or advantageously used under all the circumstances for county purposes. Dyer v. Martin, 132 Ga. 445 (64 S. E. 475); Trapnell v. Candler County, 146 Ga. 617 (91 S. E. 771). In this case, the evidence shows indisputably that the timber involved had become unserviceable for county purposes; and, that being true, the county commissioners were authorized to dispose of it by sale.
3. It is alleged in the original petition, and earnestly argued by plaintiff's counsel, that the contract of sale relied upon by the defendant is void, because (1) it was not read in full by the county attorney when he presented it to the county commissioners for consideration and action; and (2) because it was not read by the county commissioners themselves before being acted upon. This contention is wholly untenable. It is elementary that the contract is not void, as contended, for either of these two reasons, and citation of authority for this ruling is, we think, unnecessary.
4. It is alleged in an amendment to the original petition that the contract relied upon by the defendant is a nullity because it was not properly signed for and on behalf of the county, and should for that reason be canceled. There is no merit in this. The record discloses that it was signed, "Fulton County, a political subdivision of Georgia, by James H. Aldredge (Seal)." James H. Aldredge, as the uncontroverted evidence reveals, was, at the time he signed the contract, Chairman of the Fulton County Board of County Commissioners, and he, as a witness for the plaintiff, testified: "I signed it [the contract involved] on the part of Fulton County, and I signed it pursuant to direction of the board." And an extract from the official minutes of the board of county commissioners, as introduced in evidence, shows: that "Commissioner Towns made a motion that the above and foregoing contract between Fulton County and James T. Malcom be approved and ratified by the board, and that the chairman of the board be authorized to execute said contract. The above and foregoing motion was seconded by Commissioner Doyal, and upon roll-call vote. said contract was approved and the chairman authorized to execute the same for the county." The contract was, therefore, signed for and on behalf of Fulton County by James H. Aldredge, the board's chairman, in accordance with the board's directive, and it was not necessary, as urged, for the word "Chairman" to follow Aldredge's signature; nor, as insisted, for all of the members of the board to sign it. See, in this connection, Johnston v. Crawley, 25 Ga. 316 (71 Am. D; 173); Carr v. Georgia Loan & Trust Co., 108 Ga. 757 (33 S. E. 190); Pilcher v. English, 133 Ga. 496 (5) (66 S. E. 163); Boone v. Jenkins, 147 Ga. 812 (95 S. E. 707); Braswell v. Palmer, 191 Ga. 262 (3) (11 S. E. 2d, 889). In the Braswell case, supra, this court said: "If the county commissioners authorize the sale of county land, the deed may lawfully be signed by the chairman in the name of the board." Accordingly, the contract was not void, as contended, for want of proper signing on behalf of the county.
5. "After the cause is at issue, the defendant may, by an answer in the nature of a plea puis darrein continuance, set up matter of defense which has arisen since the beginning of the action, or since the filing of the last plea." Cook v. Georgia Land Co., 120 Ga. 1068 (48 S. E. 378); Horne v. Rodgers, 103 Ga. 649 (2) (30 S. E. 562). In this case, the plaintiff's prayers for injunction and cancellation are based, in part, upon an allegation that the contract relied upon by the defendant was unenforceable because it had not been entered on the official minutes of the board; that it was incomplete in execution because the county's official seal had not been affixed thereto; and that the defendant acquired no title to the timber involved because the contract upon which he relied had never been delivered to him. The defendant, by an amendment to his answer averred: that, subsequently to the institution of this litigation, his contract had been duly recorded upon the minutes of the board; that the county's official seal had been affixed to the contract; that the contract had been delivered to him by the Fulton County Board of County Commissioners; and that he had taken possession of the lands upon which his timber was located for all purposes contemplated by his contract. As to these issues, it appears from the record that the contract in question was recorded in obedience to a decree entered in mandamus proceedings instituted by the defendant against the plaintiff's commissioners and their clerk. And it also appears from the evidence, without dispute, that by resolution duly entered on its minutes, the board of county commissioners, by a majority vote, authorized and directed its clerk to affix the county's seal to the contract in question and deliver it to the defendant Malcom, and that such was pursuantly done on February 7, 1951. Upon these contentions, the plaintiff was therefore not entitled to prevail.
6. The amendment to the original petition alleges also: that the contract relied upon by the defendant is void and should be canceled, because (a) the contract shows on its face that it was to be executed by "agents" of the county and only Aldredge's signature appears on behalf of the county; (b) it appears on its face to have been signed by Aldredge as an "agent" of the county, and no written authority was entered upon the official minutes of the board authorizing him to bind the county as agent; (c) it was incomplete when signed by Aldredge, since it did not contain any reference to any action taken by the board on October 4, 1950, but refers to action taken by the board on September 18, 1950; when no action was taken by the board on the latter date authorizing such a contract between the parties; (d) it has never come into being as a valid and subsisting contract between the parties, since there has never been any meeting of the minds of the parties, and there has never been any execution and delivery of the contract with an intention that a valid and subsisting contract should come into being, or that the defendant should acquire any right to the timber on the lands of the county as they are described in the petition; and (e) it is not binding upon the county, since the board entered no order or resolution upon its official minutes authorizing anyone to make such a contract of conveyance on behalf of the county. Obviously, under the facts hereinbefore stated and the rulings heretofore made, these attacks upon the validity of the contract are not meritorious. If it be' possible, they contain less merit than any of the others, and show the extent to which a party, embarrassed by its contract, will go to escape the binding consequences of a contract obligation.
7. The judgment overruling some of the special demurrers as interposed by the defendant to the plaintiff's petition as amended shows no substantial error.
8. While a county contract which has not been entered of record on the minutes of the authority making it is unenforceable ( Milburn v. Commissioners of Glynn County, 112 Ga. 160, 37 S. E. 178; Jones v. Bank of Cumming, 131 Ga. 614, 63 S. E. 36; Weathers v. Easterling, 153 Ga. 601, 113 S. E. 152), yet it is not for want of record alone necessarily void; and, if otherwise valid, it becomes enforceable when subsequently recorded. In other words, a county contract, otherwise valid, is not rendered void, as here contended, by not being entered of record by those whose duty it is to record it upon their minutes; but it is, through such failure, rendered unenforceable until it is recorded, and it is well settled in this State that mandamus will lie to require its record. Wagener v. Forsyth County, 135 Ga. 162 (68 S. E. 1115); King v. Casey, 164 Ga. 117 (137 S. E. 776). The statute fixes no limit of time during which a county contract may be entered of record. Weathers v. Easterling, supra. And the law imposes a duty upon those officers who govern the county's affairs to enter the contracts they make in behalf of the county upon their minutes, and the continued neglect on their part to discharge an official duty does not cause the duty to terminate. Jones v. Bank of Cumming, supra. In this case it is not contended that the sale to Malcom was void for any act of his; but, on the contrary, the right to rescind the contract with him was based entirely upon the ground that the contract was rendered void through the failure of the county commissioners to record it upon their minutes in discharge of their official duty. In these circumstances, we cannot agree that the contract relied on by the defendant was not binding upon the county on the theory that it was legally rescinded by the county commissioners on October 6, 1950; and this is especially true in view of the fact that it was reaffirmed and reapproved when the board of county commissioners, by motion duly adopted on February 7, 1951, ordered and directed its clerk to place the county's official seal upon it and deliver it to the purchaser Malcom, which was accordingly done, and when it was, subsequently, on February 4, 1952, and pursuant to a decree in mandamus proceedings, duly recorded upon the board's official minutes. It seems very clear to us that county commissioners cannot make a contract in behalf of the county, fail to record it in discharge of their official duty, and then rescind it because it is not recorded, as the commissioners in this case undertook to do. Accordingly, the plaintiff was not entitled to any of the relief sought upon the ground that the contract relied on by the defendant was not binding upon the county because it had been legally rescinded by the county commissioners.
9. Paragraph 8 of the original petition alleges: "On October 5, 1950, during the continuation of the regular October 4th meeting of said board, the clerk advised that he had received two offers to purchase the same timber for larger sums of money and the county manager stated that an offer had been received during the afternoon of October 4, 1950, to pay the sum of $45,000 for the same timber on the same terms outlined in the Malcom offer." The defendant demurred to and moved to strike the above-quoted allegation on the ground that it constituted no basis for the recovery of any of the relief prayed for; and upon the ground that it was irrelevant, immaterial, harmful and prejudicial to the defendant because it injected into the case an extraneous issue which tended to confuse the real issue between the parties. It was not erroneous, as contended, for the court to sustain the demurrer and strike the allegation. Elsewhere in the petition it is alleged that the defendant's offer for the timber involved was accepted at a special meeting of the board held during the morning of October 4, 1950, and subsequent offers by other parties for the same property would be irrelevant, immaterial, and not illustrative of any issue involved, and therefore confusing. 10. Under the law and the evidence, a verdict in favor of the defendant was demanded in this case, and the court erred in overruling the motion for a new trial. The main bill of exceptions contains several special assignments of error as to the overruling of special grounds of the motion for a new trial. While some of these grounds relate to matters which are not free from criticism, yet in view of the reversal on the general grounds, requiring another trial, it is not deemed necessary to deal with the special assignments of error. It does not seem likely, in view of the rulings in the present decision, that the questions raised by the special grounds of the motion will arise upon another trial. See Simpson v. Charters, 188 Ga. 842 (5 S. E. 2d, 27).
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill. All the Justices concur.