Abbott v. Hayes County

• Decision Date: 18 April 1907
• Docket Number: 14,783
• Citation: 111 N.W. 780,78 Neb. 729
• Parties: CHARLES E. ABBOTT, APPELLEE, v. HAYES COUNTY, APPELLANT
• Court: Nebraska Supreme Court

111 N.W. 780

78 Neb. 729

CHARLES E. ABBOTT, APPELLEE, v. HAYES COUNTY, APPELLANT

No. 14,783

Supreme Court of Nebraska

April 18, 1907

APPEAL from the district court for Hayes county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

W. S Morlan and C. A. Ready, for appellant.

Starr & Reeder, contra.

AMES C. OLDHAM and EPPERSON, CC., concur.

OPINION

AMES, C.

In the fall of 1889, M. J. Abbott was a candidate for the office of county attorney for Hayes county for the then ensuing term of two years. The statute fixed the salary for that office at $ 500 a year, but Abbott, in support of his candidacy, represented to the public that, if he should be elected, he would not demand or accept compensation exceeding $ 300 a year. He was elected and served throughout the term, during which he presented quarterly salary claims of $ 75 each, which were allowed as being in full of his compensation, but there was no specific stipulation between him and the board that they were such, and there was never at any time any agreement that his salary should be other or different than the sum fixed by statute. After the expiration of his term of office the plaintiff, as his assignee, presented to the county board a claim for $ 400, as for an unpaid residue of his salary. The board rejected the claim, and the plaintiff appealed to the district court, where he recovered a judgment for the amount of his demand, with interest. From the judgment the county appealed to this court.

There is no dispute about the facts. The case is ruled by Gallaher v. City of Lincoln, 63 Neb. 339, 88 N.W 505. Counsel for the defendant seek to distinguish between the two cases because of the single circumstance that in the case cited there was a pretended contract by the terms of which the plaintiff undertook to serve for less than the statutory salary, while in the present instance there was no such agreement. We think the distinction is without a difference in principle. Indeed, it does not appear to us that the distinction itself exists. In the case cited there was a formal agreement which, but for considerations of public policy, would have been valid, and which, but for such consideration, would have been ratified and renewed at every pay day. In this case there was no formal agreement, but there was a transaction every three months which, but for such considerations, would have amounted to an implied agreement to the same effect, and...