City of Ellsworth v. Rossiter

• Decision Date: 09 May 1891
• Citation: 46 Kan. 237,26 P. 674
• Parties: CITY OF ELLSWORTH v. ROSSITER.
• Court: Kansas Supreme Court

26 P. 674

46 Kan. 237

CITY OF ELLSWORTH v. ROSSITER.

Supreme Court of Kansas

May 9, 1891

Syllabus

1. Where R., a civil engineer, and two others, are appointed by a city as a committee to superintend the construction of water-works in and for the city, and R. is appointed because of his knowledge and experience as a civil engineer, and any two of the committee have the authority to act, and they all enter upon the discharge of their duties under the appointment, but they do not all do the same amount of work and afterwards the work for which they were appointed is all performed and completed, and the city accepts and receives the same, held, that R. may then maintain an action against the city for compensation for his own individual services, without joining with him the other two members of the committee as plaintiffs.

2. Further, held, that several causes of action were not improperly joined in the action, and that the question whether several causes of action were stated in the petition and not separately stated and numbered, cannot be raised or presented by a demurrer.

3. In a case such as is mentioned in No. 1 of this syllabus, the members of the committee are not such public officers as are required to perform their services without compensation, where no compensation has previously been provided for; but they are agents and employes of the city, who may recover reasonable compensation for their services after the services have all been performed and accepted by the city.

4. Where services have been fully and completely performed for and at the request of a city, and have been accepted and received by the city, the city is then under legal and moral obligation to pay for the same whatever they are reasonably worth, and whatever irregularities may have intervened in the original employment.

Error from district court, Ellsworth county; S. O. HINDS, Judge.

Theodore Sternberg, for plaintiff in error.

Garver & Bond and Ira E. Lloyd, for defendant in error.

OPINION

VALENTINE, J.

This was an action brought in the district court of Ellsworth county by F. N. Rossiter against the city of Ellsworth to recover compensation for services performed by him at the request of the city in and about the construction of city water-works. A trial was had before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $681; and the defendant, as plaintiff in error, brings the case to this court for review.

The only question now presented is with reference to the sufficiency or insufficiency of the plaintiff’s petition. This question was first raised by a demurrer, the grounds of which are as follows; First, a defect of parties plaintiff; second, several causes of action are improperly joined; third, the petition does not state facts sufficient to constitute a cause of action. These grounds of demurrer are the only matters now presented to this court for review, and while we think they are all untenable, yet we shall consider them separately and in their order.

1. The employment of the plaintiff was under a resolution of the may or and council of the city, which reads, so far as is necessary to quote it, as follows: "First . That John L. Bell, F. N. Rossiter, and Charles J. Evans are hereby appointed and constituted a committee of three, for the superintending in every respect the construction and establishing of waterworks in said city of Ellsworth, Kan.; and said committee, or a majority thereof, shall have full power to do or perform all such acts and things as may be necessary and proper in and about the erection, operation, alteration, and equipment of any water-works that may be commenced within this city during the year 1885, until the completion of said works, and the acceptance thereof by the council of this city, and to make all necessary and proper contracts in and about the premises for the construction and erection of the same: provided, that committee shall not have power to bind the said city for the payment of any greater sum than the amount of bonds which may be authorized by a vote of the citizens of said city for said purposes."

No express contract was made with reference to the amount of the compensation which any one or any two or all the members of the foregoing committee should receive. Indeed, compensation is not mentioned at all, either as joint or several; but, as any two of the committee had full power to do and perform any or all the things for which they were employed, it would seem that the compensation which one might be entitled to receive might be different from or greater or less than that which either of the others might be entitled to receive. In other words, a joint compensation to all or an equal amount to each might not be just. It would therefore seem that any compensation which might be allowed should be a several compensation, and not a joint one. They were not partners and it does not appear that they had any interest in each other’s affairs. The portions of the statutes relating specifically to this question of the joinder of parties plaintiff are sections 35 and 37 of the Civil Code, which read as follows: "Sec. 35. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article." "Sec. 37. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made defendant, the reason being stated in the petition." Under these statutes, it is necessary...