Andrews v. Sch. Dist. of City of McCook

• Decision Date: 21 October 1896
• Citation: 49 Neb. 420,68 N.W. 631
• Parties: ANDREWS ET AL. v. SCHOOL DIST. OF CITY OF MCCOOK.
• Court: Nebraska Supreme Court

49 Neb. 420

68 N.W. 631

ANDREWS ET AL.

v.SCHOOL DIST. OF CITY OF MCCOOK.

Supreme Court of Nebraska.

Oct. 21, 1896.

Syllabus by the Court.

1. This action was begun in the name of A. H. Andrews & Co., the firm name, without the further statement that the firm was organized to do business in this state, or giving the individual names of the members of the firm. The defect in the petition, in the particular indicated, did not render it, for that reason, open to attack by general demurrer. Sanborn v. Hale, 11 N. W. 302, 12 Neb. 318.

2. A school district of the class involved in this action cannot contract an indebtedness for furnishing the school building, and issue, as evidence of that indebtedness, warrants or orders payable to a party or his order, and at stated intervals after date, with interest at a certain rate provided for in the terms of the instruments. Any such instruments are invalid and unenforceable.

3. It is provided in the law enacted for the government of school districts of the class of the one herein sued “that all accounts shall be audited by the secretary, approved by a committee, to be styled the Committee on Claims, and no expenditure greater than $200 shall be voted by the board, except in accordance with the provisions of a written contract; nor shall any money be appropriated out of the school fund except on a recorded affirmative vote of a majority of all the members of the board, and said accounts and the records of said board in cities of the first class shall at all times be subject to the inspection and examination of the auditor of such city.” Held, that the presentation of a claim or account to the secretary or committee on claims was not a condition precedent to the commencement of an action thereon.

Error to district court, Red Willow county; Welty, Judge.

Action by A. H. Andrews & Co. against the school district of the city of McCook on district orders. From a judgment for defendant, plaintiff brings error. Reversed.Hugh W. Cole and Stewart & Munger, for plaintiff in error.

W. S. Morlan, for defendant in error.

HARRISON, J.

The plaintiff filed a petition in the district court of Red Willow county, in an action commenced by it against defendant, which petition was in the main portions as follows: “(1) That the defendant, the school district of the city of McCook, in the county of Red Willow, in the state of Nebraska, is a body corporate, duly organized under the laws of the state of Nebraska, and possesses all the usual powers of a corporation organized for public purposes. (2) Plaintiff further states that on the 13th day of March, 1888, a petition was presented to defendant corporation, signed by the resident electors of said district, praying that an election be held for the purpose of voting bonds in the sum of $12,000, to be used in purchasing a site for the erection of a school building thereon and the furnishing said building. The records of the defendant corporation show the following action, to wit: ‘Moved and seconded that, as a board, we approve the petition, and take the action as therein prayed for. Carried.’ That afterwards, on the 3d day of April, 1888, an election was held in said district for the purpose of voting for or against the issuance of the bonds as prayed for, to wit, for purchasing site, erecting building, and furnishing same, at which said election more than the requisite number of electors voted in favor of said proposition; and on the 4th day of April the defendant corporation met and declared said bond proposition carried, and ordered the issuance of the bond. (3) That said bonds were duly issued and sold by said defendant corporation, for the sum of $12,368, and the money held in trust for the purposes for which same was voted by the people.” It was alleged that a site was purchased, and the contract made for the erection of the school building, and, further, “that on the 17th day of August, 1888, a meeting of the defendant corporation was held for the purpose of receiving bids for the furniture necessary for the complete furnishing of said school building; and that on the 18th day of August the defendant corporation held a meeting, and at said meeting the defendant corporation accepted the bid and proposition of the plaintiff, A. H. Andrews & Co., for furnishing the school furniture for said building, and the proper officers of said board were ordered to sign contracts for same with A. H. Andrews & Co., which was done. * * * (6) That said bid and proposition is in the possession of the defendant corporation, and plaintiff is unable to set out a copy of same. That, under and by virtue of the terms of said proposition and acceptance, the plaintiff was to furnish the furniture for said building, and to receive from the defendant corporation payment in cash or legally issued warrants; also, that there should be deducted from the price of the new furniture an allowance which was to be made for old furniture owned by the defendant corporation, which plaintiff was to take in part payment, said new furniture to be furnished as the building was completed. (7) That the plaintiff furnished to the defendant the following amounts of furniture complained of, which was of the agreed prices as per proposition and acceptance and contract, as follows, to wit: $1,135.50, for which payment was received as follows: $401.90 in old furniture, and $733.60 in a school order or warrant, which was afterwards issued and delivered to plaintiff by the defendant corporation. $389.70, for which payment was received as follows: $115 in old furniture, and $274.70 in a school order or warrant which was afterwards issued and delivered to the plaintiff by the defendant corporation; $115, for which payment was received in a school order or warrant issued to the plaintiff by the defendant corporation.” It was also pleaded that on November 19, 1888, there was issued to plaintiff an order on the treasurer of the school district to pay plaintiff or order the sum of $733.60 on November 19, 1891, with interest at 7 per centum per annum, to be paid out of the “contingent fund”; also, that there was issued another order on the treasurer of the district in the sum of $115, payable to plaintiff or order, of date August 20, 1891, with interest at 7 per cent., and to be paid out of the “fund for supply”; and a third order was issued, dated December 8, 1889, in the sum of $274.70, payable to plaintiff or...