City of Blair v. Lantry

• Decision Date: 16 February 1887
• Citation: 21 Neb. 247,31 N.W. 790
• Parties: CITY OF BLAIR v. LANTRY AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 247

31 N.W. 790

CITY OF BLAIR

v.LANTRY AND OTHERS.

Supreme Court of Nebraska.

February 16, 1887.

Syllabus by the Court.

The city council of a city of the second class, or any committee or member thereof, officer or department of the corporation, cannot incur any expense, or enter into any contract, whether the object of the expenditure shall have been ordered by the city council or not, unless an appropriation shall have previously been made concerning such expenses, except in cases where the proposition has been sanctioned by a majority of the legal voters of the city, etc.

Where the mayor and council of a city of the second class drew an order upon the cemetery fund of such city for $716.66, there being at the time $1,000 in such fund in the treasury of such city, and applied the proceeds to the payment of lands purchased as an addition to the cemetery of such city, but no appropriation had been previously made concerning such expense, held, no act or ratification being proved, that the mayor and clerk were liable for the amount drawn on such order.

Appeal from Washington county.W. H. Farnsworth and George B. Lake, for plaintiff.

W. H. Eller, J. T. Davis, and Congdon, Clarkson & Hunt, for defendants.

MAXWELL, C. J.

In March, 1886, the plaintiff filed its petition in the district court of Washington county, stating its cause of action as follows:

“(1) That it is a legally organized city of the second class.

(2) That in May, 1884, the defendant Lantry was the mayor of the city of Blair, and that the defendant Farr was the city clerk thereof.

(3) That during the month of May, 1884, the plaintiff opened negotiations with the defendants Weimers for the purchase of a tract of land adjoining said town, and containing ten acres, which it desired for cemetery purposes; that in the month of September, 1884, and before such negotiations had been consummated, the defendants Lantry and Farr, conspiring with each other and with the defendants Weimers to cheat and defraud the plaintiff, without any authority of law, in fraud of the rights of the plaintiff, drew a warrant on the treasurer of the city of Blair in favor of the defendant Lantry for the sum of $716.66, for the pretended purchase of said land, and, without the consent or authority of plaintiff, placed upon the records of Washington county a deed from the defendants Weimers, pretending to convey said land to the plaintiff.

(4) Alleges that the plaintiff never purchased said lands, and that the deed from Weimers was a nominal conveyance only.

(5) That at the time of such conveyance said real estate was largely incumbered by mortgage in an amount unknown to plaintiff; that the title to said land was imperfect, and not complete in defendants Weimers, and that it was worth far less than the amount of the order above referred to, and the incumbrance thereon.

(6) That on the eighth of September, 1884, the defendant Lantry wrongfully presented said order to the treasurer aforesaid, and received therefrom the sum of $716.66 of the funds of plaintiff, of which said amount plaintiff was thereby defrauded.

(7) That it has never taken possession of said land, or exercised control or ownership thereof, nor ratified said purchase, but has at all times disclaimed the same.

(8) That, before the commencement of this suit, plaintiff offered to reconvey said lands to defendants Weimers, and demanded of each of the defendants the sum of $716.66, which was refused, and further offers now to make a delivery of such conveyance.”

The following is a copy of the order:

+----------------------------+
                ¦“$716.66.¦BLAIR CITY ORDER. ¦
                +----------------------------+
                

BLAIR, NEB., September 6, 1884.

Cem. Fund.

The treasurer of the incorporated city of Blair pay to Victor G. Lantry, or order, seven hundred and sixteen and 66-100 dollars.

By order of city council.

+-----------------------------------------------+
                ¦EDWARD J. FARR, Clerk.¦VICTOR G. LANTRY, Mayor.¦
                +-----------------------------------------------+
                

(Weimer land business.)”

Indorsement thereon as follows, to-wit: “VICTOR G. LANTRY.”

Prays that the above order may be adjudged unauthorized and illegal; that the deed from defendants Weimers to the plaintiff be adjudged unauthorized, null, and void; that the title in the lands be quieted in the defendants Weimers; and that the defendants, or such of them as the court shall think proper, may be adjudged to refund to the plaintiff the amount found due, with costs of suit and for general relief.

Thereafter, and on April 5, 1886, the defendants Weimers demurred to the petition for the reason that it did not state facts sufficient to constitute a cause of action against them. This demurrer was subsequently overruled.

The defendant Farr answered, admitting that defendant Lantry was mayor of said city; that he was the clerk thereof; and alleging that John W. Boggs, Neil McMillan, Allen C. Jones, and Pat Quinlan were councilmen of said city, and Edward C. Jackson was treasurer thereof; that on the tenth day of July, 1884, a committee was appointed by the said city to confer with defendants Weimers with reference to buying the land in question for cemetery purposes; that said committee was composed of said McMillan, Jones, and Quinlan; that afterwards, and on the fifth day of August, 1884, on motion, it was resolved that the city of Blair do purchase said 10 acres of ground for cemetery purposes at the agreed price of $1,250, and that said D. D. Weimer present an abstract of title and necessary papers to close the purchase at the next regular meeting of the city council; that said minutes were approved by the council on the eighteenth day of August following; that on the first day of September following, at a meeting of said council at which all members were present, on motion the chairman of the finance committee, to-wit, John W. Boggs, above named, was instructed to close the contract with D. D. Weimer for 10 acres of land for cemetery purposes when he was satisfied the title was good, and on motion clerk was instructed to draw a warrant for the sum of $716.66 when the said chairman of the finance committee reported to him the title good for the land bought of Weimer; that the minutes of said meeting were approved September 5, 1884. Further alleges that, in pursuance of the above resolutions and ordinances, and relying upon said instructions, and in good faith, after said purchase by said city had been completed fully by the said city and its agents, and after the said Boggs, as chairman of said committee, had reported to him that the title to said land was good, he drew the order complained of in the presence of said Boggs, with his knowledge and consent, and under his direction, and payable to said V. G. Lantry, as ordered by him, for the reason that he (Boggs) said that Lantry understood the business, and would pay over the money to said Weimers when the deed was made by them conveying said land to said city, which he believes said Lantry did so pay over to said Weimers when said deed was delivered; that said order was drawn on the cemetery fund of said city in the amount named, and that the money belonging to said fund was in the treasury of said city at the time, and that the treasurer of said city honored said order, and duly paid the same from the said cemetery fund in the sum of said $716.66, and that the balance due on said land, to-wit, the sum of $533.34, was secured by mortgage referred to in plaintiff's petition in favor of A. E. Wells, of Burt county, and that said mortgage includes all the incumbrance upon said title; that said city is seized in fee-simple in and to said premises whenever it pays said mortgage to said Wells, with interest thereon, as it agreed to do. Further alleges that he relied upon the acts of said plaintiff so openly done, published, and announced as aforesaid; that he acted within the scope of his authority, without connivance, collusion, conspiracy, or fraud; and further alleges that said lands were valuable, and the only available that can be had as an addition to the cemetery of said plaintiff; that the present cemetery is already inadequate to its wants; and prays that the above proceedings be ratified and confirmed, and that he be dismissed, with his costs.

The defendant Lantry answered as follows: “(1) Denies each and every allegation in the petition contained except such as are expressly admitted. (2) Admits the organization of the city; that he was legally elected and qualified mayor. (3) Admits negotiations by said city with said Weimers for the land described. (4) Admits the order mentioned was drawn in his favor, but avers that the same was drawn at the instance and request of said city; that the money was paid out for the use and benefit of Annie Weimer. (5) Denies any conspiracy, collusion, or fraud. (6) Denies that he had any part in the negotiations with said Weimers, or any one for her; that he never received and retained a cent of said money; was not profited by said purchase, either directly or indirectly. (7) Denies any tender of title, and prays to be dismissed.”

The reply consists of denials.

On the trial the following decree was rendered: “This cause coming on for trial at a former day of the present term, the plaintiff and defendants being present, it was submitted to the court upon the pleadings and testimony, and was argued by counsel and taken under advisement, and now, on this day, the court, being fully advised in the premises, finds, as to the said defendants Victor G. Lantry, Annie Weimer, and D. D. Weimer, that there was no fraud or conspiracy, and no intention to defraud, and finds that the warrant described in said petition was drawn and appropriated without authority of law, and the proceeds thereof should be refunded. It is...