ERROR
from the district court of Red Willow county. Tried below
before WELTY, J.
REVERSED AND REMANDED.
Hugh W
Cole and Stewart & Munger, for plaintiff in error:
The
action could be sustained as an action on the original
contract, under the allegation that warrants were issued and
payment refused when duly presented. The action could also be
sustained on the contract, because the agreement provided for
payment in cash or legally issued warrants. (Paddock v
Symonds, 11 Barb. [N.Y.] 117; Goldschmidt v. City of
New Orleans, 5 La. Ann. 436; Dyer v. Township of
Covington, 19 Pa. 200; Allison v. Juniata
County, 50 Pa. 351; Varner v. Nobleborough, 2
Me. 121; Benson v. Carmel, 8 Me. 110; State v
Cook, 43 Neb. 318; Hitchcock v. City of
Galveston, 96 U.S. 341; Read v. City of Plattsmouth, 107
U.S. 568.)
An
action will lie on the warrants. (Heffleman v. Pennington
County, 52 N.W. [S.D.] 851; Leavenworth County v.
Keller, 6 Kan. 510; International Bank v. Franklin
County, 65 Mo. 105; Terry v. City of Milwaukee,
15 Wis. 490; Brown v. Town of Jacobs, 77 Wis. 27;
People v. Clark County, 50 Ill. 213; Clark v.
Polk County, 19 Iowa 248; Board of Commissioners v.
Day, 19 Ind. 450; Edinburg-American Land & Mortgage
Co. v. City of Mitchell, 48 N.W. [S.D.] 131; Grayson v.
Latham, 84 Ala. 546.)
The
city of McCook can make contracts, contract debts for
purposes germane to its business, and issue warrants for the
purpose of evidencing the indebtedness. (Tiedeman, Municipal
Corporations, sec. 163; 2 Beach, Public Corporations, secs.
776-1361; City of Lincoln v. Sun Vapor Co. 8 C. C.
A. 253; Allen v. City Council of La Fayette, 89
Ala. 641; Mullarky v. Town of Cedar Falls, 19 Iowa
21; City of Burrton v. Harvey County Savings Bank,
28 Kan. 390; 1 Dillon, Municipal Corporations, sec. 485; City
of Nashville v. Ray, 19 Wall. [U.S.] 468.)
The
schools of the city of McCook had power to contract the debts
without the sanction of the voters. (Crist v. Township of
Brownsville, 10 Ind. 461; Sheffield Township v.
Andress, 56 Ind. 157; Harney v. Wooden, 30 Ind.
178; Middleton v. Gruson, 106 Ind. 18; Munson v.
Minor, 22 Ill. 594; Falout v. City of Indianapolis,
1 N.E. [Ind.] 392; State v. City of Omaha, 7
Neb. 267; Beverly v. Sabin, 20 Ill. 357; School
District v. Fogleman, 76 Ill. 189.)
Where a
municipality partially exceeds its power in issuing warrants,
the warrants are only void as to the excess, and the petition
would state a cause of action for the real amount.
(School District v. Stough, 4 Neb. 357; Clark v.
Polk County, 19 Iowa 248; Young v. Camden
County, 19 Mo. 309; Johnson v. Stark County, 24
Ill. 75; City of Quincy v. Warfield, 25 Ill. 317;
Mygatt v. City of Green Bay, 1 Biss. [U.S.C.C.] 292;
Shirk v. Pulaski County, 4 Dill. [U.S.C.C.] 209;
National Lumber Co. v. Wymore, 30 Neb. 356; State v.
City of Crete, 32 Neb. 568.)
A
general demurrer is not sufficient to raise the point of a
want of legal capacity to sue. (Sanborn v. Hale, 12
Neb. 318.)
Though
the school district lacked power to act in the manner it did,
the law will presume a contract for the value of the
furniture. (Read v. City of Plattsmouth, 107 U.S.
568; Chapman v. Douglas County, 107 U.S. 348;
Clark v. Saline County, 9 Neb. 516; City of
Lynchburg v. Slaughter, 75 Va. 57.)
W. S.
Morlan, contra:
The
petition does not state a cause of action, for the reason
that the plaintiff has no legal capacity to sue.
(Burlington & M. R. R. Co. v. Dick, 7 Neb. 242;
Weisz v. Davey, 28 Neb. 566.)
Under
the allegations of the petition, plaintiff's remedy is
mandamus. (State v. Gandy, 12 Neb. 232; Maher v.
State, 32 Neb. 354.)
HARRISON, J.
The
plaintiff filed a petition in the district court of Red
Willow county, in an action commenced by it against
defendant, which petition was, in the main portions, as
follows:
"1.
That the defendant, the school district of the city of
McCook, in the county of Red Willow, in the state of
Nebraska, is a body corporate, duly organized under the laws
of the state of Nebraska, and possesses all the usual powers
of a corporation organized for public purposes.
"2.
Plaintiff further states that on the 13th day of March, 1888
a petition was presented to defendant corporation, signed by
the resident electors of said district, praying that an
election be held for the purpose of voting bonds in the sum
of $ 12,000, to be used in purchasing a site, for the
erection of a school building thereon, and the furnishing
said building. The records of the defendant corporation show
the following action, to-wit: 'Moved and seconded, that
as a board we approve the petition and take the action as
therein prayed for. Carried.' That afterwards, on the 3d
day of April, 1888, an election was held in said district for
the purpose of voting for or against the issuance of the
bonds as prayed for, to-wit, for purchasing site, erecting
building, and furnishing same, at which said election more
than the requisite number of electors voted in favor of said
proposition, and on the 4th day of April the defendant
corporation met and declared said bond proposition carried,
and ordered the issuance of the bonds.
"3.
That said bonds were duly issued and sold by said defendant
corporation for the sum of $ 12,368, and the money held in
trust for the purposes for which same was voted by the
people."
It was
alleged that a site was purchased and the contract made for
the erection of the school building, and further: "That
on the 17th day of August, 1888, a meeting of the defendant
corporation was held for the purpose of
receiving bids for the furniture necessary for the complete
furnishing of said school building, and that on the 18th day
of August the defendant corporation held a meeting and at
said meeting the defendant corporation accepted the bid and
proposition of the plaintiff, A. H. Andrews & Co. for
furnishing the school furniture for said building, and the
proper officers of said board were ordered to sign contracts
for same with A. H. Andrews & Co. which was done.
"6.
That said bid and proposition is in the possession of the
defendant corporation, and plaintiff is unable to set out a
copy of same; that under and by virtue of the terms of said
proposition and acceptance the plaintiff was to furnish the
furniture for said building, and to receive from the
defendant corporation payment in cash or legally issued
warrants; also, that there should be deducted from the price
of the new furniture an allowance which was to be made for
old furniture owned by the defendant corporation, which
plaintiff was to take in part payment, said new furniture to
be furnished as the building was completed.
"7.
That the plaintiff furnished to the defendant the following
amounts of furniture complained of, which was of the agreed
prices, as per proposition and acceptance and contract, as
follows, to-wit: $ 1,135.50, for which payment was received
as follows, $ 401.90 in old furniture and $ 733.60 in a
school order or warrant, which was afterwards issued and
delivered to plaintiff by the defendant corporation; $
389.70, for which payment was received as follows, $ 115 in
old furniture and $ 274.70 in a school order or warrant,
which was afterwards issued and delivered to the plaintiff by
the defendant corporation; $ 115, for which payment was
received in a school order or warrant issued to the plaintiff
by the defendant corporation."
It was
also pleaded that, on November 19, 1888, there was issued to
plaintiff an order on the treasurer of the school district to
pay plaintiff or order the sum of $ 733.60 on
November 19, 1891, with interest at seven per cent per annum,
to be paid out of the "contingent fund;" also, that
there was issued another order on the treasurer of the
district in the sum of $ 115, payable to plaintiff or order,
of date August 20, 1891, with interest at seven per cent, and
to be paid out of the "fund for supply," and a
third order was issued, dated December 8, 1889, in the sum of
$ 274.70, payable to plaintiff or order September 25, 1891,
out of the contingent fund, and further:
"11.
The plaintiff further alleges that at the time of the making
of the proposition by plaintiff to defendant corporation for
the furniture and the acceptance of the same by the defendant
corporation, to-wit, on the 18th day of August, 1888, at time
contract was entered into, there was in the funds voted by
the people for the building and furnishing of this building
realized from sale of bonds not otherwise appropriated, more
than the sum of $ 1,618, and more than enough to pay for the
furniture purchased by defendant corporation from the
plaintiff.
"12.
Plaintiff further alleges that there was, at the time of the
issuing of the orders heretofore described, in the fund
realized from the sale of the bonds voted for the purpose of
building and furnishing the building, and is at the present
time in said funds, as shown by the records of the defendant
corporation, not otherwise legally appropriated, more than
the sum of $ 1,618, out of which the orders issued to
plaintiff should be paid.
"13.
That the defendant corporation received the furniture (for
which the orders were issued in payment in part) and has
appropriated same to their own use, claiming same, and that
the defendant corporation has at no time rescinded their
contract, or offered to do so, and that the defendant
corporation is at this time using and occupying said
furniture under claim of ownership.
"14.
That said orders were duly presented for payment and payment
refused, and also refused to register same, and that the
defendant corporation refuses to pay...
