National Lumber Co. v. City of Wymore
| Decision Date | 18 September 1890 |
| Citation | 46 N.W. 622,30 Neb. 356 |
| Parties | NATIONAL LUMBER CO. v. CITY OF WYMORE |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county. Tried below before APPELGET, J.
Reversed and remanded.
A Hardy, for plaintiff in error, cited: Bellows v. West Fork, 30 N.W. [Ia.], 582; Skinner v. Dayton, 19 Johns. [N. Y.], 573*; Gaines v. Miller, 111 U.S 395; Com. Bank of Buffalo v. Warren, 15 N.Y. 577; Herrmans v. Clarkson, 64 Id., 171; 1 Dillon, Mun Corp., sec. 463; Hoyt v. Thompson, 19 N.Y. 207; Olcott v. Tioga R. Co., 27 N.Y. 546; Medomak Bank v. Curtis, 24 Me. 38; Whitnel v. Warner, 20 Vt. 425; Essex Turnpike v. Collins, 8 Mass. 292; Lyndeborough Glass Co. v. Mass. Glass Co., 111 Id., 315; Sandwich Mfg. Co. v. Shiley, 15 Neb. 109.
T. D. Cobbey, contra, cited: Fulton v. Lincoln, 9 Neb. 363; Wheeler v. Plattsmouth, 7 Id., 279; Merriam v. Otoe Co., 15 Id., 413; Omaha Nat'l Bank v. Omaha, Id., 334.
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 a member of the building committee (to erect a calaboose);
Q. What arrangement, if any, was made about the city paying the National Lumber Company for its material furnished to build the calaboose?
A. The contract was let by taking sealed bids. The contract of Mr. Darling being considerably lower than any of the others, he was given the contract, and when he went to make arrangements with the National Lumber Company they would not let him have the lumber unless the city would guarantee or stand good for its payment. He reported to the board, and they, at a regular meeting, voted to guarantee that the National Lumber Company should receive their pay; in other words, that the city would stand good for the payment of the money. They also authorized the chairman of the board, Mr. A. J. Dales, and myself to go and inform the National Lumber Company of the action of the board, which we did.
Q. Who made the arrangements, and what position did they hold?
A. The chairman of the board, Mr. A. J. Dales, and myself; I was one of the building committee.
Q. State fully all you know about this, and who was to pay the company for the materials.
A. I have stated as fully as I now remember it. The city of Wymore was to pay the company for the materials.
The court instructs the jury "that the defendant, being a municipal corporation, can do no act or make any contract except by ordinance or resolution passed...
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