Gehling v. School Dist. No. 57
| Decision Date | 19 March 1880 |
| Citation | 4 N.W. 1023,10 Neb. 239 |
| Parties | JOHN GEHLING, PLAINTIFF IN ERROR, v. SCHOOL DISTRICT NO. 56, RICHARDSON COUNTY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county. Tried below before WEAVER, J.
The petition alleged that plaintiff, at the special instance and request of defendant, performed certain mason work upon defendant's school-house, for which defendant agreed to pay so much as the same was reasonably worth, which was $ 80 that afterwards, towit: Sept. 23, 1876, "as evidence of such indebtedness," the defendant executed and delivered to plaintiff an order upon the school treasurer, signed by the director and moderator, for said sum of $ 80; that said order having been presented to the treasurer for payment, was endorsed by him "Not paid for want of funds," and that no part of said indebtedness or of said order has ever been paid, though payment has been demanded. The defendant answered, setting up in substance that in July, 1875, the electors of the school district had voted to build a new school-house, and for that purpose to issue the bonds of the district to the amount of $ 20,000; that thereupon the trustees of the district had entered into a contract with one Burbank to put up the said building and complete the same all of which was accordingly done by said Burbank, and that the said bonds were accordingly delivered to him; that the work done by plaintiff was a part of that which Burbank was to do according to said contract; that the electors of the district never authorized the trustees to employ plaintiff and that the issuing of the school order set up in the petition was ultra vires; and denying that the defendant ever employed plaintiff to do the work for which the action was brought.
The plaintiff thereupon moved the court to strike out of the answer all but the denial of the employment. This motion having been sustained, and the plaintiff having replied generally, the case was tried to the court without a jury and judgment having been rendered in favor of the school district, Gehling now seeks to reverse that judgment by petition in error.
AFFIRMED.
Schoenheit & Thomas, for plaintiff in error.
George P. Uhl, for defendant in error.
Our decision in this case must turn upon the power of the school board to make the contract with Gehling for the work done by him, and for which the order in question was issued.
In School District v. Stough, 4 Neb. 357, it was held that a school board could not bind the district by drawing accepting, and issuing orders against a proposed building fund which, although duly voted, had not yet been raised. In ...
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