Morearty v. City of McCook

• Decision Date: 01 June 1928
• Docket Number: 25952
• Citation: 219 N.W. 839,117 Neb. 113
• Parties: IRVIN R. MOREARTY, APPELLANT, v. CITY OF MCCOOK, APPELLEE
• Court: Nebraska Supreme Court

219 N.W. 839

117 Neb. 113

IRVIN R. MOREARTY, APPELLANT, v. CITY OF MCCOOK, APPELLEE

No. 25952

Supreme Court of Nebraska

June 1, 1928

APPEAL from the district court for Red Willow county: CHARLES E ELDRED, JUDGE. Reversed.

REVERSED.

Bernard McNeny, and C. D. Ritchie, for appellant.

Perry & Van Pelt, John F. Cordeal, and L. H. Cheney, contra.

Heard before GOSS, C. J., ROSE, DEAN, THOMPSON, EBERLY and HOWELL JJ., and REDICK and WHEELER, District Judges.

OPINION

HOWELL, J.

This is an appeal by plaintiff, also appellant, from a judgment against him rendered at the close of his testimony, on the motion of appellee, also defendant, dismissing plaintiff's petition and cause of action.

It is expedient to fix in mind the precise issues involved. Plaintiff's petition alleged: The plaintiff was employed as "consulting engineer" to assist in constructing all pavements and sewers in McCook to be let within one year from June 27, 1925. On that date plaintiff signed a written contract relating to that work, and delivered it to the defendant. About April 9, 1926, defendant signed that contract and delivered a copy to the plaintiff. During the year defendant contracted paving as follows: October 12, 1925, First street job for $ 126,301.03; January 18, 1926, Second street job for $ 210,007.64; and March 29, 1926, Third street job for $ 197,429.55. Plaintiff performed the work required of him under the terms of the contract as to plans, specifications, estimates, supervision and inspection, and defendant received, accepted and retained the benefits thereof. The October, 1925, contract was completed and accepted July 12, 1926; the January 18, 1926, contract was completed and accepted August 12, 1926; the March 29, 1926, contract was completed and accepted October 11, 1926, by reason of which there was due plaintiff $ 26,686.86, less payments made to him by the city on November 23, 1925, $ 867.26, December 28, 1925, $ 1,910.50, and March 8, 1926, $ 800. Plaintiff prayed judgment for $ 23,109.10, interest and costs.

Defendant answered, admitting its incorporation, and denying all other allegations in the petition, and affirmatively alleged: About April 13, 1925, plaintiff accepted an appointment as its city engineer at a salary of $ 4 a day, for time engaged, but not to exceed $ 300 per annum. He took the oath of office and continued to be and act as city engineer until April 13, 1926. During all of that year defendant "was entitled to the time, skill and services of plaintiff at the salary so agreed upon, and that the pretended contract and agreement, set forth in plaintiff's petition, was and is against public policy and void." Plaintiff was estopped because he disregarded his duties as "such city engineer," by improper advertisements for bids, improper blue prints, divulging information to preferred bidders, preventing competition, unskillful inspection, not requiring skilful work, permitting inferior material, allowing poor labor, causing acceptances of defective work and inferior quality of workmanship. Defendant prayed a dismissal of plaintiff's action, and for costs.

Plaintiff replied by general denial, and alleged that the work done by him was not such as would be performed by an ordinary city engineer; that he expended $ 14,369.56, in the performance of his contract, for other engineers, inspectors, surveyors and foremen, with the knowledge of defendant; that defendant adopted all plans and had received his services and the services of those employed by him, with full knowledge of the details thereof; that the city council employed plaintiff as a "special engineer" to perform the work mentioned in plaintiff's amended petition, and that his compensation for said work was fixed by the defendant at the time of his employment to do said work.

The effect of the foregoing is admission of the contract and avoidance thereof, because plaintiff was city engineer on a salary of $ 4 a day, not to exceed $ 300 per annum. The city was entitled to his services as city engineer at the salary named, and "the pretended contract and agreement" was "against public policy and void."

The attempted plea of estoppel defeats itself since it presents conclusions amounting to nothing more than a mere breach of contract. The answer, in effect, admits plaintiff performed work contemplated in the written contract, in that it alleges, in general terms, wherein the performance of his duties were not efficiently complied with. So, in reasoning finally, it can be said the only issues before this court are: (1) Was the contract valid in law? (2) Did the plaintiff substantially perform the services required of him? (3) What sum, if any, is due from the defendant to the plaintiff under the provisions of the contract?

We have examined the record with care and are convinced that plaintiff never was the "city engineer" of the city of McCook on a salary. He performed all the work required of him by the written contract, except making the final estimates and assessments of the cost on benefited properties, which could have been done by him in six to eight days. Such failure affords a foundation for damages easily calculated, and the plaintiff should be paid the contract price for his services, less what was paid him by the city, plus the expenses of making final estimates and assessments. So far as the pavement is concerned, plaintiff fully performed his work, and the pavement was approved by the city and accepted.

The trial court, as shown by the bill of exceptions, stated its reasons for rendering judgment against the plaintiff. Among other things, it was said: "I am satisfied * * * that he (plaintiff) did not accept and never was the city engineer. * * * There is no question but that he did some work, beginning in May or June, 1925." Plaintiff did not complete the work. "He made no valuation of the work done for assessment against the property." We add, he did not make the final estimates for work done by the contractors. "He has founded his case upon a contract. * * * One of the first exhibits was the minutes of the proceedings of the council under date of April 9 (1926). The wording of the resolution * * * was that the mayor be authorized and instructed to sign the contract with the plaintiff * * * indicating by the very wording of it * * * that the mayor was never authorized to enter into any contract * * * prior to that time. * * * The contract became effective as the contract of April 9, 1926; prior to that it was a mere proposition." "He says that he entered into the contract and signed it himself, * * * and (it) was thereafter signed and executed by the defendant. * * * Now, there comes the question of departure and variance. * * * If work was performed prior to that time, and some of it was performed, it was performed without any agreement as to compensation. * * * Now, if he performed without any contract, * * * then, he cannot recover upon this contract at all, but must recover upon quantum meruit." We have quoted thus extensively from the statements of the trial court, because it shows the precise question to be decided.

The evidence discloses, without conflict, that, on June 27, 1925 pursuant to prior negotiations, plaintiff signed the written contract in suit, which fixed his compensation and required him to give a $ 10,000 bond to the city, which recites: "Whereas, said principal has been employed by the city of McCook, Nebraska, as consulting engineer, covering certain paving work, in accordance with this proposal," conditioned that plaintiff shall "comply with all the terms, covenants and...