Fiske v. School District of City of Lincoln

• Decision Date: 05 October 1899
• Docket Number: 8,688
• Citation: 80 N.W. 265,59 Neb. 51
• Parties: FERDINAND C. FISKE v. SCHOOL DISTRICT OF THE CITY OF LINCOLN
• Court: Nebraska Supreme Court

80 N.W. 265

59 Neb. 51

FERDINAND C. FISKE v. SCHOOL DISTRICT OF THE CITY OF LINCOLN

No. 8,688

Supreme Court of Nebraska

October 5, 1899

REHEARING of case reported in 58 Neb. 163. Judgment below reversed.

REVERSED AND REMANDED.

Stewart & Munger, for plaintiff in error.

Ricketts & Wilson, contra.

OPINION

HARRISON, C. J.

In this action the plaintiff sought a recovery for services alleged to have been rendered to the defendant in preparing plans, drawings and specifications for school buildings pursuant to the terms of a contract between the parties. To the petition filed in the district court a general demurrer was presented, and on hearing sustained and the suit dismissed. In an error proceeding to this court the matter was submitted, and an opinion was filed February 23 of the current year and the judgment of the trial court was reversed. The conclusions then announced were as follows: "1. A board of education has power to contract with an architect to prepare general drawings and specifications for a schoolhouse, 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." The opinion is reported in 58 Neb. 163. On motion a rehearing was allowed, and there has been a second hearing and submission of the cause.

For a statement of the case we refer to the former opinion. It need not be repeated here. It will be noticed that the controverted questions relate mainly, if not entirely, to the right of the plaintiff to recover for preliminary plans drawings and specifications which were not used or followed in the constructions of any buildings. It is strenuously insisted that the rules announced in the opinions in the cases of School District v. Stough, 4 Neb. 357, Gehling v. School District No. 56, 10 Neb. 239, 4 N.W. 1023, School District No. 16 v. School District No. 9, 12 Neb. 241, 11 N.W. 311, State v. Sabin, 39 Neb. 570, 58 N.W. 178, Mizera v. Auten, 45 Neb. 239, 63 N.W. 399 and Andrews v. School District, 49 Neb. 420, 68 N.W. 631, and the principles underlying them, are governable in the present controversy and fatal to the claims of the plaintiff. It is asserted that the cases cited directly establish, or by fair inference state, that the authority of school district boards or officers to contract in regard to erection of buildings, or any subject which will or does involve the expenditure of money,...