Martin v. Whitman County

• Decision Date: 28 May 1890
• Citation: 1 Wash. 254,24 P. 444
• Parties: MARTIN v. WHITMAN COUNTY.
• Court: Washington Supreme Court

24 P. 444

1 Wash. 254

MARTIN v. WHITMAN COUNTY.

Supreme Court of Washington

May 28, 1890

Appeal from district court, Whitman county.

HOYT J., dissenting.

D. J. Crowley, Frank H. Brown, and P C. Sullivan, for appellant.

STILES J.

Plaintiff in error brought suit against Whitman county upon a contract made with him by the board of county commissioners, by an order spread upon its minutes in the following words "It is hereby ordered that C. Q. Martin make a tax-list of all taxes delinquent in Whitman county, and that he receive therefor 5 per cent. on the total amount of said tax-list. That said 5 per cent. is to be paid out of the tax due Whitman county on said tax-list, as it is collected." The supreme court of the territory, in Martin v. Whitman Co., 20 P. 599, held the making of this contract to have been within the power of the board of commissioners. This, therefore, is the law of the case. See Navigation Co. v. Dacres, 23 P. 415, (January session of this court.) The cause was tried upon its merits in accordance with that opinion, upon a complaint alleging the list to have been made by plaintiff, showing $68,576.25 delinquent taxes due the county, and the sum of $2,000 thereof actually collected. The truth of these allegations, and others showing the refusal of the board to allow more than 5 per cent. of the money collected, was admitted. The answer of the defendant alleged that the list prepared by the plaintiff was so carelessly and negligently prepared that it was useless for the purpose for which it was designed, viz., the collection of the taxes delinquent, but no proof seems to have been offered to sustain these averments; and the case was submitted to the jury after a refusal of the court to direct a verdict for the plaintiff for $2,000, and upon the court's direction to find for plaintiff for $100, and costs.

The request to charge necessarily involved a construction of the terms of the contract by the court, on the question whether the services of the plaintiff were to be compensated by the payment of an amount equal to 5 per cent of the total amount of delinquent taxes discovered and listed by him, out of the first money derived from that source, or 5 per cent. of the money collected, without regard to the gross delinquency. The court, as has been observed, instructed that only 5 per cent. of the amount collected had been stipulated for, and plaintiff appealed. We are well satisfied that the construction given to the contract was wrong. Indeed, as we view it, it was not subject to construction at...