Nelson v. City of Florence

• Decision Date: 24 December 1913
• Docket Number: 17,987
• Citation: 144 N.W. 791,94 Neb. 847
• Parties: ANDREW NELSON ET AL., APPELLEES; ALBERT E. PARMELEE, INTERVENER, APPELLANT, v. CITY OF FLORENCE ET AL., APPELLEES
• Court: Nebraska Supreme Court

144 N.W. 791

94 Neb. 847

ANDREW NELSON ET AL., APPELLEES; ALBERT E. PARMELEE, INTERVENER, APPELLANT, v. CITY OF FLORENCE ET AL., APPELLEES

No. 17,987

Supreme Court of Nebraska

December 24, 1913

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Will H Thompson, for appellant.

Carl E Herring, John M. Redmond and R. H. Olmsted, contra.

HAMER, J. FAWCETT, J., concurring.

OPINION

HAMER, J.

This is an appeal from the judgment of the district court for Douglas county. The pleadings on behalf of the plaintiffs and interveners are of great length. We will content ourselves with a statement of the general purposes of the action, a reference to what is denied or admitted, and a review of the facts as they appear from the evidence. The petition and amended petitions on behalf of the plaintiffs and interveners allege that they are taxpayers and freeholders of the city of Florence; that they prosecute their action on their own behalf and on behalf of all other taxpayers and freeholders of the city of Florence; that the city is a city of the second class governed by the provisions of chapter 37, Ann. St. 1909. It is then alleged that the city entered into a contract with the defendant M. Ford for the improving of Main street in the city of Florence. While it is claimed that the contract was void for certain alleged errors, it is not denied that the street was improved, yet it is claimed that there are certain defects in parts of the workmanship and inferiority in parts of the material used. The interveners allege the ownership of certain real estate in the city of Florence which they claim to own. From time to time amended petitions of intervention were filed and orders were made pending the final determination of the case. They relate to the granting of a temporary injunction and modifications of the same, and leave to file amended pleadings. The answer of Ford is a denial of the material things set forth in the petitions and petitions of intervention. There is also an answer of the defendant, the city of Florence.

The decree, so far as it is necessary to allege its contents, recites that the case came on to be heard upon the second amended petition of intervention, the answer thereto of M. Ford, and of the city of Florence, the replies, the evidence and the arguments of counsel; that the court finds in favor of the said M. Ford and the said city of Florence and against said interveners; that the order of injunction heretofore granted should be dissolved; that the city of Florence and the said M. Ford had full power and authority to make the agreement for settlement described in said pleadings, and that the same should be and is hereby ratified; that under the terms of said agreement the said M. Ford should have and recover from the said city of Florence the sum of $ 47,392.02, together with interest thereon from May 31, 1910, which said amount is in payment for work done and performed on Main street in said city of Florence from a point 107 feet south of the south line of Jackson street to the south line of Briggs street, save and except the paving between the tracks and one foot adjoining and outside of each track of the Omaha & Council Bluffs Street Railway Company; that special assessments to pay for the same were twice attempted to be levied by the council of said city and were twice set aside, the first time by this court and the last time by said council because of jurisdictional defects; that said levies heretofore attempted to be made are void and no valid levy can be made; and the said M. Ford is entitled to judgment against said city of Florence for the amount so found due him, and that of said sum $ 7,500, as set forth in said pleadings and statement, is available for the purpose of payment on account of the amount herein found due said Ford; that nothing in this decree shall be construed to modify or lessen the liability of said Ford or his bondsmen under the contract between said Ford and said city, or under the bond given for the completion of the work, and for holding said city of Florence harmless from all damages resulting from negligence in the prosecution of said work; that nothing in this decree shall be construed to prevent the city of Florence from retaining out of any moneys herein found due to said Ford a sum not exceeding $ 3,500 to protect said city of Florence in the enforcement of the provisions of said contract and bond relative to damages resulting from negligence, or accepting in lieu thereof a good and sufficient bond, and that said city of Florence shall have the right to demand as a condition precedent to the enforcement or satisfaction of the judgment from the bondsmen of said Ford satisfactory assurance of their approval hereof and their continued liability as herein provided; that the said city of Florence shall have the right as a condition precedent to the enforcement of said judgment to demand and receive the delivery to city for cancelation all the warrants issued by said city and delivered to said M. Ford. It is considered, adjudged, and decreed that the orders of injunction heretofore entered are hereby dissolved and set aside; that said M. Ford and said city of Florence have and recover of and from the interveners and each of them their costs of suit herein expended from the date of intervention; that said Ford recover from said city of Florence the sum of $ 53,796.48, together with interest thereon from May 6,1912. To this judgment the intervener Parmelee excepted.

We have examined the evidence, which covers more than 800 type-written pages. It shows that there are some defects in the material used and that the workmanship may possibly have been better in part. It is contended by the appellant that the testimony shows that competitors were induced by purchase to refrain from bidding. On the trial a witness was produced who testified that he agreed with Mr. Ford not to bid at Florence "and to give him a clear field up there." He goes into the details, and says that Mr. Madison, the sales agent of the brick company, and himself talked the matter over, that Mr. Ford was with them, and that he said to Ford, that he (the witness) had incurred certain expenses for the promotion of the pavement, and some other expenses. He then comes to the conclusion that Ford "got a special price on the brick" because he (the witness) stayed out and did not bid; that Charles S. Huntington seems to have been in the employ of this witness. He was to receive from the witness five cents a yard for "promoting" the pavement. He seems to have continued working for the pavement until the contract was awarded to Mr. Ford. In appellant's brief it is said: "It is an undisputed fact that Huntington was promoting the pavement, and in the first instance for Fanning. It had been proved and conceded that Fanning did not bid. It is undisputed that he incurred all this obligation, and no one can be brought to say that after going to all this trouble and expense and having the man on the ground to create a favorable sentiment for the brick block, the very kind that Fanning was laying, he neglected to put in a bid except for the reason detailed by him." Huntington testified that Jackson told him that he (Huntington) would be "taken care of." Jackson testified, and wholly denied this conversation with Huntington. He testified: "I never said anything of the kind." Ford also denied saying what Fanning testified that he said.

From an examination of this conflicting evidence we do not find anything which seems to justify us in the belief that the district judge, who saw the witnesses and heard them testify, was wrong in his conclusion concerning these facts. We are unable to say that the finding and judgment of the district court are unsupported by the evidence. It was for the district court to determine the facts in the first-instance, and we are unable to say upon the conflict of the evidence before it that its judgment is wrong, and it seems to be right. A verdict on conflicting evidence will not be disturbed where the evidence is sufficient to sustain a recovery in favor of either party. Schmidt v. Village of Papillion, 92 Neb. 511, 138 N.W. 725; Kinney v. Chicago, B. & Q. R. Co., 92 Neb. 383, 138 N.W. 577. In O'Chander v. Dakota County, 90 Neb. 3, 132 N.W. 722, it was held: "In an action at law, the judgment of the district court, rendered upon conflicting evidence, will not be set aside by a reviewing court, unless it can be said that it is unsupported by the evidence and is clearly wrong."

The principle recognized in the foregoing decisions may be applied to the findings and judgment of the district court in an equity case, except that on appeal, in such case, the hearing in this court is necessarily a trial de novo, because of the statute of 1903 prescribing the mode of reviewing findings of fact. Section 681a of the code provides: "That in all appeals from the district court to the supreme court in suits in equity, whether now pending or hereafter to be brought to said court, wherein review of some or all of the findings of fact of the district court is asked by the appellant, it shall be the duty of the supreme court to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions, and upon trial de novo of such question or questions of fact reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence, without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof."

In Grandin v. First Nat. Bank, 70 Neb. 730, 98 N.W. 70 it is is said, in substance, that the...