Evans v. Platte Valley Public Power & Irr. Dist.

• Decision Date: 03 March 1944
• Docket Number: 31721.
• Citation: 13 N.W.2d 401,144 Neb. 368
• Court: Nebraska Supreme Court
• Parties: EVANS v. PLATTE VALLEY PUBLIC POWER & IRR. DIST.

13 N.W.2d 401

144 Neb. 368

EVANS v. PLATTE VALLEY PUBLIC POWER & IRR. DIST.

No. 31721.

Supreme Court of Nebraska

March 3, 1944

Syllabus by the Court.

A contract, the fulfillment of which by express or implied agreement is made to depend upon the act or consent of a third person, over whom neither party has any control, cannot be enforced unless the act is performed or the consent given.

J T. Keefe, of North Platte, and W. C. Dorsey, of Omaha, for appellant.

Beeler Crosby & Baskins, of North Platte, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

Plaintiff brought this action against defendant, a public power and irrigation district organized and existing under the laws of Nebraska, to recover an alleged balance due upon a contract for legal services. When the issues were made complete by their respective pleadings the parties waived a jury and the case was tried to the court, resulting in a judgment for defendant. Plaintiff appeals to this court assigning as error that the judgment is not supported by the evidence and is contrary to law.

The questions for decision are, whether the parties entered into a contract to increase plaintiff's salary, conditioned that it be approved by P. W. A. officials, and, whether it was thereafter so approved?

There is no dispute in the evidence which discloses that plaintiff was employed as chief counsel for defendant and as such rendered valuable services from the time of its organization in June 1933, until December 31, 1937. On August 29, 1935, plaintiff sent a letter of resignation to defendant terminating his services as of September 1, 1935. Plaintiff then left the city of North Platte for a short period of time and upon his return was solicited by certain officials of defendant and members of the board of directors thereof to reconsider the action he had taken. Thereupon plaintiff met with the board of directors of defendant district at their regular meeting on September 21, 1935. At this meeting after much discussion of the matter and in plaintiff's presence a motion was made in proper manner and form and the board of directors adopted a resolution, which is reflected in the official minutes of defendant corporation, increasing plaintiff's salary from $500 to $850 a month effective September 23, 1935, all subject to the approval of P. W. A.

The only moneys that defendant district ever had with which to increase plaintiff's salary, or as a matter of fact for any other purpose, were funds loaned to it by P. W. A. under conditions specifically imposed by debenture loan agreements requiring that every prospective expenditure by the district for any purpose or amount must be first approved by P. W. A. officials of the state and nation. Plaintiff, as chief counsel for defendant, had full and complete notice and knowledge of all these facts and circumstances. It is evident also that he had knowledge of their legal significance. The resolution of the board of directors is pleaded verbatim in plaintiff's petition, together with the allegation appearing thereafter, "that P. W. A. in substance and effect, approved and assented to plaintiff's said employment and agreed compensation."

The evidence further discloses that after adoption of the resolution defendant made every reasonable effort to obtain the approval and allowance of the increase, and this even after plaintiff's employment finally terminated. Nevertheless P. W. A. officials continuously and steadfastly at all times refused to give their approval. As early as October 29, 1935, and again on April 22, 1936, the proposed increase was disapproved and disallowed by appropriate P. W. A. officials in letters sent to defendant, which plaintiff read at the times they were received. However, with this notice and knowledge plaintiff voluntarily continued as chief counsel for defendant and accepted, endorsed and cashed pay checks on the 1st and 15th of each month during the entire period from September 23, 1935, to and including December 31, 1937. These checks, each for the sum of $250 semi-monthly, had printed on their face, "In full for all wages or salary from _____ (date inserted) to _____ (date inserted)," and immediately above plaintiff's endorsement appeared these words, "Endorsement and cashing of this pay roll check receipts...