Fiske v. Sch. Dist. of City of Lincoln

• Decision Date: 23 February 1899
• Citation: 78 N.W. 392,58 Neb. 163
• Parties: FISKE v. SCHOOL DIST. OF CITY OF LINCOLN.
• Court: Nebraska Supreme Court

58 Neb. 163

78 N.W. 392

FISKE

v.SCHOOL DIST. OF CITY OF LINCOLN.

Supreme Court of Nebraska.

Feb. 23, 1899.

Syllabus by the Court.

1. A board of education has power to contract with an architect to prepare general drawings and specifications for a school house, as a preliminary to determining whether a building, and, if so, what kind, shall be constructed, although, for want of funds devoted to building purposes, it may at that time have no power to erect the building.

2. Such preliminary steps are not a part of the work of construction.

Error to district court, Lancaster county; Hall, Judge.

Action by Ferdinand C. Fiske against the school district of the city of Lincoln. There was a judgment for defendant, and plaintiff brings error. Reversed.Stewart & Munger, for plaintiff in error.

Ricketts & Wilson, for defendant in error.

IRVINE, C.

Fiske, an architect, brought this suit against the school district of the city of Lincoln to recover for services in the preparation of certain plans, drawings, and specifications for school buildings. The petition alleged a contract for plans and specifications for three ward buildings and a high-school building. It appears from the petition that Fiske had received his pay for his work in connection with the three ward buildings, and the controversy relates only to the plans and specifications for the high-school building. A general demurrer to the petition was sustained, and the action dismissed.

The petition alleges a contract in the form of a written proposal by plaintiff, and its acceptance. By this proposal, plaintiff undertook to furnish architectural services, and to take supervision of the work, “at following rates: For full professional services (including supervision), 3 per cent. upon the cost of work. For partial services as follows: Preliminary studies, 0 per cent.; preliminary studies, general drawings, and specifications, 1 and 1/2 per cent.; detail drawings, 1/2 per cent.; supervision, 1 per cent.” The proposal also contained the following: “In case of abandonment of the work, the charges to be based on the lowest responsible bid.” It is lleged that plans were submitted for a high-school building of the estimated cost of $90,000, and were by the board of education accepted; that thereafter the board undertook to erect a cheaper building, and other plans were prepared and accepted for a building of a less cost; that bids were received, and a responsible bid made for the sum of $75,515, which was the lowest bid. Recovery was sought for the value of preliminary studies, general drawings, and specifications for the more expensive building, and for preliminary studies, general drawings, and specifications and detail drawings for the cheaper building. It is also charged that all plans were finally abandoned.

In support of the judgment of the district court, it is first argued that the contract set out is not a contract with the district, but one with certain persons claiming to be a building committee. It is true that the written acceptance of plaintiff's proposal, as pleaded, is signed on behalf of the district only by three persons, styling themselves a “building committee,” but it is further alleged that the contract was ratified by the board of education; so that, on demurrer, the objection made has no force, provided the board of education itself had authority to enter into such a contract. On that question, the argument of defendant in error is based entirely on the assumption that the contract was for a step in the erection of a school house, and that it falls within the rule of School Dist. v. Stough, 4 Neb. 360, and later cases, holding that a school...