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GRENADA MUNICIPAL SEPARATE SCHOOL DISTRICT v. JESCO

APRIL 18, 1984

GRENADA MUNICIPAL SEPARATE SCHOOL DISTRICT
v.
JESCO, INC.



BEFORE PATTERSON, BOWLING AND DAN LEE

BOWLING, JUSTICE, FOR THE COURT:

The question involved in this appeal is whether or not a municipal separate school district may bring suit for alleged damages resulting from the alleged faulty construction of a district's school building against the contractor, the architect, the bonding company, the sub-contractors and the furnishers of building materials. We answer the question in the affirmative.

Appellant, Grenada Municipal Separate School District, through its duly designated officials, filed its suit alleging that it entered into a contract with appellee, Jesco, Inc., to construct a school building. It alleged that the contract required that the building, including the roof, be constructed according to designated specifications, in a workmanlike manner, and with proper materials, but that the defendants, all of whom were subject to the terms of the contract, constructed the building roof so that it was defective and had to be replaced. The declaration alleged that the breach of the contract was done in a negligent manner as well as the failure to perform the contract provisions.

 Appellees answered and as a" First Defense "stated:

 Plaintiff is a statutory entity, invested by statute with certain powers, and subject to certain liabilities, and it can neither sue nor be sued, except as authorized by statute; there is no statutory authority for the plaintiff to maintain this action and it should be dismissed. Defendants ask that this defense be considered as plea matter and heard separately and prior to trial on the merits.

 At the outset, we note that the boards of trustees of municipal separate school districts are statutorily granted the same power and authority as are granted the boards of trustees of other school districts. [Mississippi Code Annotated, Section 37-7-619 (1972)] All school district trustees are then granted the power, authority and duty" to have responsibility for the erection, repairing and equipping of school facilities and the making of necessary improvements. "[MCA 37-7-301 (1972)]

 We find that the Grenada Municipal Separate School District has been expressly and impliedly, both by statute and prior cases of this Court, authorized to file and pursue the claim set out in its declaration. MCA 11-45-11 (1972) provides that" [t]he state shall be entitled to bring all actions and all remedies to which individuals are entitled in a given state of case ". The Grenada Municipal Separate School District is a subdivision of the state, and as such, comes within the terms of the statute without expressly in the declaration calling itself" The State of Mississippi. "

 Furthermore, it certainly would be against public policy to authorize the separate school district as a subdivision of the State, to enter into a specific contract to spend the district taxpayer's money to build a school, and leave that contracting party without the right to enforce its terms. In a construction contract involving thousands and millions of dollars, the parties to that contract should have mutual obligations and mutual rights to insist on its terms being enforced. This is so whether the breach of the contract is an intentional breach or a negligent breach.

 In Cig Contractors, v. Mississippi State Building Comm'n, 399 So. 2d 1352 (Miss. 1981), we said, through Presiding Justice Walker that:

 The general rule is that when the legislature authorizes the State's entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.

 (399 So. 2d at 1355).

 In the recent case of Mississippi State

 Department of Public Welfare v. Howie, [No. 54,767, decided March 14, 1984, and not yet reported], we said, through Justice Dan Lee:

 Based on the authority in Cig, the general law of contracts and common sense, we now hold that when the legislature authorizes the state's entry into a contract, the state necessarily ...


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