Nat'l Lumber Co. v. City of Wymore

• Decision Date: 18 September 1890
• Parties: NATIONAL LUMBER CO. v. CITY OF WYMORE.
• Court: Nebraska Supreme Court

30 Neb. 356

46 N.W. 622

NATIONAL LUMBER CO.

v.CITY OF WYMORE.

Supreme Court of Nebraska.

Sept. 18, 1890.

Syllabus by the Court.

1. The instructions must be predicated upon the testimony in the cause, and if not based thereon, although correct as abstract propositions of law, the error may be sufficient to cause a reversal of the case.

2. The allowance of a claim by the city council with the condition annexed to it, “to be paid when there is money in the treasury to pay with,” is binding on the city, and the condition will not defeat an action to recover a judgment thereon.

Error to district court, Gage county; APPELGET, Judge.A. Hardy, for plaintiff in error.

T. D. Cobbey, for defendant in error.

MAXWELL, J.

This action was brought by the plaintiff against the defendant to recover for building material used in the erection of a calaboose in that city. The defendant filed an answer as follows: “The defendant, in answer to the petition of the plaintiff, admits that the plaintiff is a corporation doing business in said county, and that the defendant is a municipal corporation in the said county, but denies each and every other material allegation in the plaintiff's petition set forth; that this action is brought to recover for a certain bill of lumber furnished by the plaintiff to one Peter S. Darling, a builder and contractor, with whom the defendant, the then village of Wymore, by its chairman and board of trustees, through a committee, consisting of two members of said board of trustees, had made a verbal contract for the erection of a calaboose; that the said contract was for the building complete, and the turning over to the then village of Wymore, in a finished condition, the said calaboose building, at a stipulated contract price, the said contractor, Darling, to purchase material, and hire labor, in his own discretion, and on his own responsibility; that, pursuant to said contract, the said builder, Darling, proceeded to erect the said calaboose, hired his own help, purchased lumber and hardware in his own discretion, without any interference or control on the part of the defendant; that said building was never completed, nor turned over to the defendant, nor accepted by the defendant, but was burned before completion, and before acceptance by the defendant, and defendant has never had any use or benefit thereof, nor control or dominion over it, nor any connection whatever therewith, and therefore denies any and all responsibility therewith or therefor, and prays for judgment for costs against the plaintiff herein.” The reply is a general denial. On the trial of the cause, one J. R. Boggs testified that in 1883 he was a member of the board of trustees, and that he was one of the building committee to erect a calaboose. “Answer. They built one while I was a member of the board. The contract was let to a man by the name of Darling. Question. What arrangement, if any, was made about the city paying the National Lumber Co. for its material furnished to build the calaboose? A. The contract was let by taking sealed bids. The contract of Mr. Darling being considerable lower than any of the others, he was given the contract; and when he went to make arrangements with the National Lumber Co. they would not let him have the lumber unless the city would...