Lyman v. City of Lincoln

• Decision Date: 04 January 1894
• Citation: 38 Neb. 794,57 N.W. 531
• Parties: LYMAN v. CITY OF LINCOLN ET AL.
• Court: Nebraska Supreme Court

38 Neb. 794

57 N.W. 531

LYMAN

v.CITY OF LINCOLN ET AL.

Supreme Court of Nebraska.

Jan. 4, 1894.

Syllabus by the Court.

1. L. & S. contracted with the city of Lincoln to furnish the material and labor to erect for said city two engine houses. They gave a bond to the city to faithfully perform all the terms of the contract, which provided: “The contractor shall file with the board of public works receipts of claims from all parties furnishing them with material and labor in the construction of such engine houses.” One L. sued the contractors and their sureties for lumber used in the construction of the buildings. The sureties demurred to the petition on the ground that it did not state a cause of action against them. Held: (1) That the clause quoted above from the contract was a promise on the part of L. & S. to pay for all labor and material furnished them in constructing said engine houses; (2) that the statement of L., in his petition, that L. & S. owed him for lumber furnished to and used by them in said buildings, was a sufficient averment of a breach of said bond; (3) that the awarding of the contract by the city to L. & S. was a sufficient consideration to support their promise to pay for the labor and material furnished them in the performance of said contract; (4) that the promise they made to the city of Lincoln was for the benefit of all persons who furnished labor and material used in said contract, and such persons could sue on said bond; (5) that the existence of an express statute or ordinance of the city of Lincoln was not necessary to the authority of the city to require of L. & S. a bond to pay their material men and laborers; (6) that the demurrer should be overruled.

2. A contractor who furnishes labor and material to a city under a contract which reserves to the city the right of cancellation is entitled, after a termination of such contract by the city, to recover from it the actual benefits the city has received from the contractor's partial performance; and this is found by ascertaining the reasonable worth to the city of such partial performance, appropriated or received by the city, at the time of such receipt or appropriation, and deducting therefrom all payments made to the contractor, and all actual damages the city has sustained by his defaults.

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

Action by Charles W. Lyman against the city of Lincoln and others. From a judgment for defendants, plaintiff brings error. Reversed.Leese & Stewart, for plaintiff in error.

N. C. Abbott, City Atty., Abbott, Selleck & Lane, and John P. Maule, for defendants in error.

RAGAN, C.

Charles W. Lyman brought suit in the district court of Lancaster county against the city of Lincoln, Layne & Sweet, copartners, Joseph C. McBride, and J. H. McMurtry, and in his petition alleged: That on June 5, 1889, the city of Lincoln entered into a contract with Layne & Sweet, by the terms of which they agreed to furnish material and labor and construct for said city two buildings for the use of its fire department. The buildings were to be according to certain plans and specifications made part of the contract; to be completed, one July 15, and the other August 1, 1889; the city was to pay for them $5,968; payments to be made on monthly estimates of completed work, furnished by the city's engineer; such payments to be 80 per cent. of the estimate, and the remainder of the contract price to be paid when the buildings were completed and accepted by the city. That it was also provided in said contract as follows: “The contractor shall file with the board of public works receipts of claims from all parties furnishing materials and labor in the construction of such engine houses before the final estimate is paid, and the work accepted from the hands of the contractors.” That, on the date of the execution of said contract, said Layne & Sweet, as principals, and McBride and McMurtry, as sureties, in consideration of said contract between said city and said Layne & Sweet, made and delivered to said city a bond in words and figures as follows: “That the above-mentioned John Layne and Charles A. Sweet shall well and truly execute all and singular the foregoing stipulations by them to be executed, or on default thereof we jointly and severally bind ourselves * * * to pay the city of Lincoln all damages which may result from such default. * * *” That the plaintiff furnished Layne & Sweet lumber and material used by them in the construction of said buildings for said city of the value of $2,155.58, of which $1,000 had been paid, leaving a balance due him on said account of $1,655.58. That Layne & Sweet entered upon the construction of the buildings,--the city afterwards waiving their completion at the time fixed therefor in said contract,--and were prosecuting their construction with reasonable diligence, and in all respects according to the contract, when the city of Lincoln, on September 6, 1889, wrongfully refused to permit Layne & Sweet to further prosecute the work, canceled said contract, took possession of the unfinished buildings, completed them, and appropriated to its (the city's) use the labor and materials performed and furnished by Layne & Sweet in the partial construction of said buildings, which labor and materials were of the value of $4,000. That the city had previously paid Layne & Sweet on said contract $2,400, and no more. That plaintiff was the owner, by assignment from Layne & Sweet, of their cause of action against the city of Lincoln arising out of this contract. Layne & Sweet made no appearance. McBride & McMurtry submitted to the petition a demurrer, on the grounds that the petition did not state facts sufficient to constitute a cause of action against them. The answer of the city, outside of the admission of the execution of the contract and bond, and the cancellation by the city of the contract, consisted of a general denial, and an affirmative averment that the city had expended a larger sum in the building of said buildings, according to Layne & Sweet's contract, than they were to receive for their construction, and that Layne & Sweet were indebted to the city. The court sustained the demurrer of McBride & McMurtry, and dismissed Lyman's suit as to them. Judgment was rendered by default against Layne & Sweet in favor of Lyman; and on the final hearing the court, sitting without a jury, found the issues for, and rendered a judgment in favor of, the city of Lincoln, and Lyman brings the case here on error.

There are three points which we notice:

1. Did the court err in sustaining the demurrer of McBride and McMurtry? It is to be observed that there are in this petition three causes of action, though not separately stated: (a) Lyman sues Layne & Sweet on an account for lumber sold and delivered to them; (b) Lyman sues Layne & Sweet as...