McGillivray v. Barton

• Decision Date: 23 January 1896
• Citation: 65 N.W. 974,96 Iowa 629
• Parties: MCGILLIVRAY ET AL. v. DISTRICT TP. OF BARTON.
• Court: Iowa Supreme Court

96 Iowa 629

65 N.W. 974

MCGILLIVRAY ET AL.

v.DISTRICT TP. OF BARTON.

Supreme Court of Iowa.

Jan. 23, 1896.

Appeal from district court, Worth county; P. W. Burr, Judge.

Action against the defendant for the recovery of a balance claimed to be due for lumber furnished a contractor for the erection of a schoolhouse for defendant district. Demurrer to petition sustained, and plaintiffs appeal. Affirmed.J. H. Sweney and A. B. Lovejoy, for appellants.

Collins & Forbes, for appellee.

KINNE, J.

1. The following facts appear in the petition: Plaintiffs, who are dealers in lumber, entered into a contract with one Hays to furnish him lumber for a certain schoolhouse, which he was to erect for the defendant district, for $400. They claim there is a balance of $122.82 and interest due them. The last of the material was furnished on October 29, 1892. An itemized statement of the lumber so furnished was filed with the proper officers of defendant on November 26, 1892. It was in fact sworn to by one of the members of plaintiffs' firm, but, by mistake or oversight of the notary, the jurat was not written out in said statement, nor was the notary's name signed, nor was any impression of seal thereon. Plaintiffs ask to have said statement so filed amended and corrected by adding thereto the jurat and official signature of the notary administering the oath, and that he be empowered to affix his seal thereto. They also plead that after the statement had been filed, and without objection to the form thereof, defendant's officers recognized the same as binding upon the defendant, and on December 10, 1892, paid plaintiffs a part of their claim, whereby defendant is now estopped from questioning the form or sufficiency of the statement so filed. To this petition a demurrer was interposed--First, because the petition did not state facts entitling plaintiffs to the relief demanded; and, second, because the petition shows on its face that plaintiffs are entitled to no relief, because it is alleged that the paper filed with the officers of defendant did not purport to be sworn to. This demurrer was sustained, and plaintiffs elected to stand on their petition, and excepted to the ruling.

2. This case, as we view it, presents but two questions which need be considered--First, can a binding claim be made against the defendant district by doing any act or acts which are not in full compliance with the terms of the statute authorizing such claims? and, second, is the defendant estopped from questioning the sufficiency of the claim or demand in fact filed? The first question must be determined by the provisions of the statute itself. Section 1 of chapter 179 of the Acts of the 20th General Assembly provides: “Every mechanic, laborer or other person who as sub-contractor shall perform labor upon, or furnish materials for the construction of any public building or bridge or other improvement not belonging to the state, shall have a valid claim against the public corporation constructing such building, bridge or other improvement for the value of such services and material, in an amount not in excess of the contract price to be paid for the building, bridge or other improvement, nor shall any such corporation be required to pay any such claim, at any time before, or in any manner different from that provided in the principal contract.” Section 2 of the same act provides: “Such claim shall be made by filing with the public officer through whose order the payment is to be made, an itemized and sworn statement of the demand within thirty days after the performance of the last labor, or the furnishing of the last portion of the material, and claims shall have priority in the order in which they shall be filed.” Now, the material man under these provisions, has “a valid claim against” the school district, in case he, within the time provided by section 2 of the act, files “an itemized and sworn statement of the demand” with the proper officers. In the case at bar, plaintiffs filed an itemized statement of their demand with the proper officers, and in proper time, but there was no jurat attached. It seems that, as a matter of fact, it was sworn to, but there was nothing...