Merrick Cnty. v. Batty

• Citation: 10 Neb. 176,4 N.W. 959
• Parties: MERRICK COUNTY v. BATTY.
• Decision Date: 18 March 1880
• Court: Supreme Court of Nebraska

10 Neb. 176

4 N.W. 959

MERRICK COUNTY

v.BATTY.

Supreme Court of Nebraska.

Filed March 18, 1880.

Error from Hall county.

Sparks & Ewing, for plaintiff.

Whitmoyer, Gerrard & Post, for defendant.

MAXWELL, C. J.

In 1876, Clarksville precinct, in Merrick county, voted and issued bonds to the amount of $8,000 for the purpose of building a bridge across the Platte river, the proposition submitted to the voters containing provisions that the bridge should be a toll bridge, and for the appointment of a commissioner to construct and take charge of the same. The defendant in error was a member of this commission, which, as it was a body unauthorized by law, it is unnecessary to notice further. The precinct bonds being insufficient to construct the bridge, notes to the amount of about $1,600 were obtained from citizens of Polk county, each one giving a note, to be credited on bridge tolls, to the amount of his note. About this time application was made to the board of county commissioners of Merrick county for assistance to complete the bridge, and aid to the amount of about $3,000 was given at various times, by said commissioners, upon condition that the bridge was to be free.

This sum seems to have been sufficient to complete the bridge. A large amount of grading for the approaches was still necessary to be done, which was performed by the defendant in error, the sum claimed therefor being $937.82, and also the further sum of $425 for repairing grade where it had been washed out. A claim is also made for the sum of $52 for the erection of a small bridge across a channel washed out by the river.

These claims were rejected by the board of county commissioners in the year 1878. On appeal to the district court of Merrick county the jury failed to agree. A change of venue was then granted to Hall county, where on the trial of the cause a verdict was rendered in favor of the defendant in error for the sum of $1,656.50. A motion for a new trial having been overruled, judgment was rendered on the verdict for the amount thereof. The plaintiffs in error bring the cause into this court by petition in error. It is conceded on the argument that the verdict and judgment are for too large a sum, and an offer was made by the defendant in error to remit therefrom the sum of $100.

The only question to be considered in this case is, does the record disclose a valid contract with the board of county commissioners of Merrick county for the performance of said labor? And that question we must answer in the negative.

It appears that the commissioners met at Clarksville, away from the county seat, and authorized the defendant in error to perform this labor; but there is no evidence of their having entered into a...