Loran v. City of Des Moines

• Decision Date: 15 May 1928
• Docket Number: 38656
• Citation: 219 N.W. 418,205 Iowa 1349
• Parties: E. J. LORAN, Appellee, v. CITY OF DES MOINES, Appellant
• Court: Iowa Supreme Court

219 N.W. 418

205 Iowa 1349

E. J. LORAN, Appellee, v. CITY OF DES MOINES, Appellant

No. 38656

Supreme Court of Iowa, Des Moines

May 15, 1928

Appeal from Polk District Court.--O. S. FRANKLIN, Judge.

Action at law, to recover for work and labor performed at the instance and request of an officer of defendant city.There was a verdict for the plaintiff, and the defendant appeals.

Affirmed.

Reson S. Jones, Eskil Carlson, Chauncey A. Weaver, George W. Vest and Don G. Allen, for appellant.

F. S Dunshee and R. L. Parrish, for appellee.

DE GRAFF, J. STEVENS, C. J., and ALBERT, MORLING, and WAGNER JJ., concur.

OPINION

DE GRAFF, J.

The facts of this case are substantially without dispute.The appellee alleged in his petition that he was employed by Mayor Garver of the appellant city, April 19, 1924, to take the place of a laborer by the name of Andrews, previously employed by the city on Illinois Street, north of University Avenue, and that he performed the services by directing the dumping of road material on Illinois Street and the spreading and leveling of the material dumped, with a spade and other tools, so as to make a passable road.He claimed for his services 65 cents per hour, which was the wages paid by appellant during the period covered, for like services.He was also sworn in as a special police officer.

The appellant, in answer to the petition, admitted its corporate capacity, as alleged, but denied all other allegations of the petition.Appellant also averred that, by reason of the terms and provisions of the appropriation ordinance passed by the city council, the mayor was authorized to employ but five dump men, and that the appropriation was made for the purpose of paying that number; that the employment of appellee, if made by the mayor, was in excess of his authority, and therefore not binding upon the city.

This is the second appeal of this case.Some of the questions discussed by counsel find disposition in our prior opinion.Loran v. City of Des Moines, 201 Iowa 543, 207 N.W. 529.

Appellee was never put on the pay roll, but, when he asked for his pay, was simply told to go to some other member of the council.His testimony is not disputed in the record before us.

The court instructed the jury that, if the plaintiff rendered services at the request of the mayor of the defendant city, and the city received the benefit of such work and labor, then the law presumes that the plaintiff is to be paid therefor, unless the contrary is shown by the evidence.No exception was taken to this instruction.It is, therefore, the law of the case.

Evidence was introduced by appellant city to show that the full quota...