Gutta-Percha & Rubber Manuf'g Co. v. Ogalalla
| Citation | 59 N.W. 513,40 Neb. 775 |
| Parties | GUTTA-PERCHA & RUBBER MANUF'G CO. v. VILLAGE OF OGALALLA. |
| Decision Date | 05 June 1894 |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. The contract of a municipal corporation, which is invalid when made, as in violation of some mandatory requirement of its charter, can be ratified only by an observance of the conditions essential to a valid agreement in the first instance.
2. But, where the forms or conditions prescribed are not intended as a limitation upon the powers of the corporation, a compliance with such conditions is not essential to a binding ratification.
3. One who deals with a municipal corporation must, at his peril, take notice of the powers conferred by its charter, and whether the proposed indebtedness is in excess of the limitation imposed thereby.
4. Where the question at issue is the existence of a particular record, any person who has made an examination of the office or books where it should be found, and shows sufficient knowledge of the subject, is competent to testify to the nonexistence of such record.
Error to district court, Keith county; Church, Judge.
Action by the Gutta-Percha & Rubber Manufacturing Company against the village of Ogalalla. Judgment for defendant, and plaintiff brings error. Affirmed.
J. R. Brotherton, Tibbets, Morey & Ferris, and Grimes & Wilcox, for plaintiff in error.
Albert Muldoon and John J. Halligan, for defendant in error.
This was an action by the plaintiff in error against the defendant in error, in the district court of Keith county, to recover the price of certain hose, hose carts, reels, ladders, and other apparatus of like character, in common use by town and village fire companies. It is alleged that said property was sold and delivered to the defendant, at its request, on the 29th day of April, 1887, for the agreed price of $569, and for which amount judgment was demanded. An answer was interposed, in which it was alleged, in substance, that although the board of trustees of the defendant village entered into an agreement to purchase from the plaintiff the property mentioned in the petition, and for the price therein stated, said agreement is void, for the reason that no appropriation had previously been made for the purchase of said property, or was available for said purpose, and that during the municipal years of 1885 and 1886 and 1886 and 1887 said village had made no appropriation, by ordinance, resolution, or otherwise, for the defraying of any part of the expenses thereof, and that said defendant never received or appropriated said property, or otherwise ratified said agreement. The reply was, in substance, a general denial of the allegations of the answer.
The provision of statute relied upon by the defendant is section 89 of chapter 14, Comp. St., entitled “Cities of the Second Class and Villages,” which reads as follows: “No contract shall be hereafter made by the city council or board of trustees or any committee or member thereof, and no expense shall be incurred by any of the officers or departments of the corporation whether the object of the expenditure shall have been ordered by the city council or board of trustees or not, unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided.” The evidence introduced at the trial fully sustains the allegations of the answer as to the failure of the village to make an appropriation available for the payment of the plaintiff's claim, whereupon the latter offered to prove by witnesses present that the village had received the property in controversy, paying the freight thereon, and had used it continuously since that time. That offer was rejected, on the objection of the defendant village, and a verdict of no cause of action returned, under the direction of the court. Judgment was subsequently entered upon the verdict, whereupon the cause was removed to this court by the petition in error of the plaintiff company.
There is practically but one question for consideration, and which is fairly presented by the offer and ruling above named. In this connection, it should be remarked that no claim is made that this case is within any of the exceptions contemplated by the statute quoted. The cases bearing upon the question of the power of municipal corporations to ratify their unauthorized contracts are confusing, and apparently irreconcilable. It would subserve no useful purpose to examine them at length in this connection, or to attempt a statement of the grounds upon which they rest. It is sufficient that...
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