County of Keith v. Ogalalla Power & Irrigation Company
| Decision Date | 19 February 1902 |
| Docket Number | 10,760 |
| Parties | COUNTY OF KEITH v. OGALALLA POWER & IRRIGATION COMPANY ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Keith county. Tried below before SULLIVAN, J. Affirmed.
AFFIRMED.
H. E Goodall, Gaines, Kelby & Storey, John H. Bower, Edward R Duffie and James H. Van Dusen, for plaintiff in error.
N. P McDonald and Edwin E. Squires, contra.
POUND, C. SEDGWICK and OLDHAM, CC. concur.
This is an action upon a bond given by the Ogalalla Power & Irrigation Company and certain sureties to the county of Keith and Ogalalla precinct therein to secure performance of a contract between the company and the county commissioners of said county acting for the precinct. Several questions of importance have been argued, but we deem one of them so decisive that we shall confine ourselves thereto. One Solon L. Wiley presented a written proposition to the county commissioners, proposing to construct a water power and irrigation canal from a point on the South Platte river about thirteen miles above the village of Ogalalla to said village if bonds of the precinct to the amount of $ 35,000 were donated in aid of the enterprise. Upon petition of upwards of fifty freeholders of the precinct the county commissioners called an election, at which the issuance of such bonds was authorized. Thereafter Wiley organized the defendant corporation, which entered into a contract with the commissioners for the construction of a canal and proceeded with the work. The bond in suit was given to secure full performance of that contract. The lower court held, we think correctly, that the contract was invalid, and not binding upon the precinct, and hence that the bond was without consideration, and unenforceable. While at common law a bond was a formal contract, requiring no consideration, there can be no question that our statute abolishing private seals has reduced it to the level of all other agreements and made it a simple contract. Luce v. Foster, 42 Neb. 818, 60 N.W. 1027. Where a bond is given to secure performance of a contract, the entering into such contract by the obligee is obviously its consideration, and, if the contract made is not binding upon the obligee, and he has done nothing of any legal validity or effect, the bond must fail. Where bonds are voted by a municipality in aid of a work of internal improvement under section 14, chapter 45, Compiled Statutes, the voters are entitled to demand strict compliance with the contract which they authorized. The section cited provides that notice shall be given prior to the election, as required in cases where bonds are voted by a county; and the statute governing such cases requires that the whole question shall be contained in the published notice. Compiled Statutes, 1901, ch. 18, art. 1, sec. 28. Hence it is manifest that the terms of the proposition set forth in the notice of election are to be taken as defining the authority of the county commissioners conferred by such election. The notice stated that the bonds were to be issued for the purpose of being donated to S. L. Wiley to aid in the construction of an irrigating and water power canal, and that they were not to be delivered to said Wiley until he entered into a good and sufficient undertaking to perform all the terms of "his propositions made to said precinct, and now on file in the office of the county clerk of Keith county." The proposition was signed by Wiley, but purported to be made by Wiley and "his associates or assigns." But we do not think the voters of Ogalalla precinct intended to deal with any such indefinite and unknown persons. They did not vote on the proposition made by Wiley to aid him or his associates or assigns, but their action was limited to...
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