Green v. Lancaster Cnty.

• Decision Date: 06 March 1901
• Citation: 85 N.W. 439,61 Neb. 473
• Parties: GREEN ET AL. v. LANCASTER COUNTY.
• Court: Nebraska Supreme Court

61 Neb. 473

85 N.W. 439

GREEN ET AL.

v.LANCASTER COUNTY.

Supreme Court of Nebraska.

March 6, 1901.

Syllabus by the Court.

1. Evidence examined, and held to support the verdict of the jury and the judgment rendered thereon.

2. Instructions given, set out in the opinion, held to correctly state the law, under the evidence, regarding the plea of accord and satisfaction in the answer of defendant.

3. It is not error to refuse an instruction regarding a proposition which is substantially covered by another instruction already given.

4. Ruling of trial court, refusing an instruction requested to the effect that the claims filed by the plaintiffs were in part only of their demands against the county, held proper.

5. An agreement of accord and satisfaction, which has been performed, between a county board representing the county, and those having claims against the county, may be proven by parol evidence, in the absence of any written record or minutes of the county board of such agreement.

6. Where such contract has been executed, and the plaintiffs have accepted its benefits, they cannot be heard to complain because the same was not entered on the minutes of the county board.

7. Where the minutes show a session of the county board for the transaction of business of the county, the session will be presumed to have been legally convened, and the burden is on the party assailing its legality to prove that it was neither a called nor a regular session.

8. A party who has received the benefits of an executed contract entered into with the county at a meeting of the county board is estopped from denying the legality of the session at which such contract was entered into.

9. Objection to certain testimony of witnesses who were permitted to testify as to the value of services claimed to have been rendered by plaintiffs, held not well taken.

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

Action by William A. Green and D. C. Van Duyn against the county of Lancaster. Judgment for defendant, and plaintiffs bring error. Affirmed.

W. J. Lamb and Billingsley & Greene, for plaintiffs in error.

T. C. Munger and J. L. Caldwell, for defendant in error.

HOLCOMB, J.

Suit was instituted by the plaintiffs in error in the lower court against Lancaster county, defendant in error, on a written contract for services alleged to have been rendered and money expended in assisting the county commissioners of defendant county in refunding, at a lower rate of interest, and negotiating a sale thereof, of a series of bonds theretofore issued by the county, and aggregating in amount some $350,000. Although stated in different ways in three separate causes of action, the gist of the petition is, in substance, that the plaintiffs had been employed to assist the county commissioners in the refunding of the bonds of the county at a lower rate of interest, for which, according to the contract on which the action was based, they were to receive “a fair compensation for their services rendered and moneys expended in that behalf for the county,” and that in pursuance of such agreement services were rendered and money expended of the total amount and value of $7,500, of which $4,500 was for moneys expended in and about the refunding and negotiating the aforesaid bonds, and that there had been paid the plaintiffs on account the sum of $2,000, leaving a balance due of $5,500, for which judgment was prayed. To this petition an answer was presented which consisted--First, of an admission of the contract, an admission that the plaintiffs rendered some services thereunder, a denial that there was anything due, and a denial of all the other allegations of the petition; and, second, of a plea of accord and satisfaction,--it being alleged, in substance, that after the bonds mentioned had been refunded, and all transactions connected therewith completed, demand was made against the county for services and expenditures claimed to have been made and performed under the contract; that the claims and demands were disputed by the county, and that the plaintiffs and defendant thereupon entered into an agreement of settlement of all demands of plaintiffs, whereby they agreed to file two claims, of $1,000 each, against the defendant, which it was agreed should be allowed, and that the defendant had satisfied and discharged all of said claims by paying the said plaintiffs the sum of $2,000 by the method agreed upon; and that the plaintiffs accepted and received the same in full satisfaction of their claims under the original contract. To this answer, in reply, a general denial was filed.

Upon a trial to the court and a jury, a verdict and judgment were returned in favor of the defendant county. After a motion for a new trial was overruled, proceedings in error were instituted in this court to obtain a reversal of such judgment. Several alleged errors are assigned and argued as grounds for a reversal, the principal ones of which will be noted in their order of presentation.

It is argued that the evidence is not sufficient to support the verdict and judgment. In other words, it is claimed that the plea of accord and satisfaction is not sustained by the evidence in the case. The argument is based on the following view of the case, assumed by plaintiffs in error as correct: It will be observed that, under the causes of action as pleaded by the plaintiffs, the sum of $4,500 is claimed to be due them for moneys expended in behalf of the county under their contract, and the further sum of $3,000 as compensation for services performed, which, after deducting or crediting the amount paid them, viz. $2,000, left a balance of $5,500 due. It is claimed by the plaintiffs that while there may be evidence tending to show, and which may support, a finding as to an accord and satisfaction of the claim for compensation for services rendered, it is entirely insufficient to prove any settlement of plaintiffs' demand for money expended in and about the matter of their employment under the contract. We are disposed to the view that this is too narrow a construction to place on the evidence relative to the alleged accord and satisfaction, and that, if it justifies a finding in favor of the county of a settlement of any part or item covered by the original contract, it will warrant the conclusion that the accord and satisfaction was a settlement for all purposes. In other words, if the evidence justifies the inference that an agreement of accord and satisfaction was entered into, and that the claim for compensation for services was included therein, then it is sufficient to show a settlement of all matters in dispute between the county and the plaintiffs growing out of, or in relation to, the contract of employment.

In the claims filed by the plaintiffs, and allowed by the county board, it is stated that the claim is made for services or commissions, and also for moneys alleged to have been expended in behalf of the county. It is stated by several witnesses that the settlement was for expenses as well as for services, and for the whole transaction by reason of which the plaintiffs claimed a right of recovery. The contract itself is but a single, indivisible instrument, which, once satisfied, cancels all obligations arising thereunder. Under a claim made by the plaintiffs based on the terms of the instrument, which has been adjusted, the natural, probable, and rational inference to be drawn therefrom is that it covered every item in controversy, and, unless there is something disclosed by the evidence to indicate that the settlement was restricted to one branch only of the matters in controversy, we think a jury would be warranted in finding that the settlement was intended as a satisfaction and discharge of all obligations under the contract, even though each item may not be clearly and specifically expressed in the subsequent agreement. The evidence in this case we regard as amply sufficient to show that the agreement, if established, was intended to, and did, embrace the disputed item of moneys alleged to have been expended as well as the claim for services rendered. Both or neither, we think, was satisfied in the manner alleged by defendant.

Regarding this same subject, it is suggested that error was committed by the trial court in the giving and refusal of certain instructions to the jury. It is urged that, before an accord and satisfaction can operate as a settlement of a prior claim of indebtedness, in the agreement there must have been a meeting of the minds of the parties touching the whole matter. The same point regarding the evidence is sought to be made and applied to the instructions, in which it is claimed this distinction or difference was not clearly presented to the jury, and by the refusal of an instruction requested by plaintiffs, in which the distinction is recognized, the plaintiffs were prejudiced to an extent...