Burns v. City of Fairmont

• Decision Date: 25 February 1890
• Citation: 28 Neb. 866,45 N.W. 175
• Parties: BURNS v. CITY OF FAIRMONT.
• Court: Nebraska Supreme Court

28 Neb. 866

45 N.W. 175

BURNS

v.CITY OF FAIRMONT.

Supreme Court of Nebraska.

Feb. 25, 1890.

Syllabus by the Court.

1. Where there is not sufficient evidence to authorize a verdict for the plaintiff, it is the duty of the court to direct a verdict for the defendant.

2. When a question is asked a witness, to which objection is made which is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced in evidence Mathews v. State, 19 Neb. 330, 27 N. W. Rep. 234.

Error to district court, Fillmore county; MORRIS, Judge.John Barsby and Pound & Burr, for plaintiff in error.

Maule & Sloan, for defendant in error.

NORVAL, J.

The plaintiff, Joseph Burns, brought this action to recover the sum of $650, claimed as a balance due him from the city of Fairmont on the following contract: “Lincoln, Neb., Jany. 12, 1887. To the Hon. Mayor & City Council of Fairmont, Neb.--Gentlemen: I herewith hand you a proposal to furnish your city a water supply of (6,400) sixty-four hundred gallons or (200) two hundred barrels of water per hour for (24) twenty-four consecutive hours' pumping, and I guaranty that said supply shall hold good for (6) six days, commencing my work in the bottom of your well now dug and walled up, and putting down an iron pipe (5) five inches in diameter, to a sufficient water supply to furnish the quantity of water above called for, and furnish a first-class joint (4) four inches in diameter, and of a sufficient length to admit of a free, easy flow of the water; putting in a section of screen pipe or joint at each vein of water, should it be deemed necessary to secure the easy flow mentioned. I will furnish all material and do all the work to complete the work, and do a first-class job in every particular. I will also put on a T on the top of the drivepipe in the dug well at or below the water line, and move your steam-pump over from its present well to the dug well, furnishing 10x12 timbers for a foundation, and running through the wall and back in the ground, laying the end outside of the wall in a brick and mortar foundation, and then plank over or floor over with 2-inch plank, putting this foundation down in the dug well at least ten feet from the surface of the ground, and then cut the pipes and fit the same with pump, and all its connections, so that it will stand on the above mentioned platform in the wall, all connected and fitted with one branch of the T on the drive pipe at the bottom of the well. I will also put on the other branch of the T a 4 1/2x14 inch cylinder, fitting the same with the disharge pipe and plunging rod running to the top of the well, connecting the discharge with the discharge pipe from the steam-pump, the latter to be connected with the present discharge already laid. Also furnish and set upon a fifty-foot to wer a twenty-two foot Aldrich mill, known as the ‘Nebraska Chief’ in this state, (the timbers and size of tower to be about the same as the one belonging to the B. & M. R. R. in Fairmont, and to be securely anchored, and the timbers of tower to be dressed lumber,) doing all work and furnishing all material necessary to construct and erect the same in a first-class manner. I will also disconnect the boiler from all its fastenings, and lower it, after first digging down the boiler-room, the full size of said room, deep enough to permit of a floor to be laid on the present sills under the building without the boiler or any of its points interfering with or reaching the floor above. I will then drift or tunnel from the boiler-room to the pump platform over the well, making it six feet high and three feet wide, cribbing the sides and top with two-inch plank, then connecting and fitting all steam-pipes with pump, making a good and workman-like job of the same in every particular, as good as it was before moved. In this it is not meant to include the foundation under the wall in the boiler-house. The city also agreeing to give me all the pipe that is now in the wells attached to the pump, or drove in the ground, if I can pull it at my own expense. I to finish and complete the work, including everything necessary to furnish the water and make the change, except the foundation mentioned, all finished and complete, for the sum of ($1,956.00) nineteen hundred and fifty-six dollars, to be paid me when the work shall be finished and tested, and shown to fulfill the conditions of this contract as per above; the whole to be completed in ninety days from this date; the contract forfeited if not completed at that time, if due diligence is not shown by me in endeavoring to complete the work; and it is especially understood that the steam-pump shall remain as it now is, and in such condition that the water from the well now there can be used until the new well is ready for use. I to have the use of the boiler by furnishing fuel and engineer, providing I do not at any time interfere with the use of the boiler and the pump by the city. [Signed] JOSEPH BURNS. The above proposition is accepted on the part of the city of Fairmont, Neb., this 15th day of January, A. D. 1887. [[[Signed] JOHN BARSBY, Mayor. Attest: C. M. CLARK, City Clerk. [Seal.]” The plaintiff alleges that he has in every respect complied with all the terms of the above contract on his part to be performed. On the other hand, the defendant insists that the plaintiff has failed to furnish the quantity of water agreed upon. The cause was tried to a jury, and a verdict by the direction of the court was returned for the city. The plaintiff brings the case here for review by petition in error.

The principal question presented for our consideration is, did the court err in instructing the jury to return a verdict for the defendant? It appears that the plaintiff has been paid on the contract $1,300, and when the same was paid the city council of Fairmont entered upon its records the following, which was agreed to by the plaintiff: “Whereas, a partial test has been made of the work done by Joseph Burns on his contract to supply water, and the council are not fully satisfied that the required amount has been fully furnished; and whereas, said Burns is desirous of recovering a portion of the money on said contract, and the council are agreed that it is proper that he do so: Therefore be it resolved, that the sum of thirteen hundred dollars be advanced said Burns on said contract: provided, such advance shall not be taken or construed as an acceptance or partial...