Parker v. Weber County Irr. Dist

• Citation: 65 Utah 354,236 P. 1105
• Decision Date: 23 May 1925
• Docket Number: 4142
• Court: Utah Supreme Court
• Parties: PARKER v. WEBER COUNTY IRR. DIST

236 P. 1105

65 Utah 354

PARKER v. WEBER COUNTY IRR. DIST

No. 4142

Supreme Court of Utah

May 23, 1925

Appeal from District Court, Second District, Weber County J. N Kimball, Judge.

Action by A. F. Parker against the Weber County Irrigation District wherein Wynne M. Parker, administrator of the estate of A. F Parker, was substituted as party plaintiff. Judgment for defendant, and plaintiff appeals.

REVERSED AND REMANDED, with directions.

Pratt & Pratt, of Ogden, for appellant.

A. G. Horn, of Ogden, for respondent.

FRICK, J. GIDEON, C. J., and CHERRY, J., and WOOLLEY, District Judge, concur. THURMAN, J., did not participate. Term of office of Hon. A. J. WEBER, who was Chief Justice when the cause was submitted, expired pending the preparation of an opinion.

OPINION

FRICK, J.

A. F. Parker commenced this action in the district court of Weber county against the defendant Weber county irrigation district to recover for services pursuant to the terms of a certain contract of employment entered into between him and said district. After the action was commenced and pending, Parker died, and his son, the plaintiff named in the caption, was substituted, as administrator of the estate of the deceased.

In the complaint, after stating the necessary jurisdictional facts and matters of inducement, it is in substance alleged that on the 16th day of December, 1920, the deceased entered into a contract with said district, by the terms of which he was to perform certain services as an irrigation engineer at a salary of $ 300 per month payable on the 1st day of each month; that said employment was to become effective and the monthly salary was to commence upon notice by said district, and was to continue for a period of six months, unless sooner terminated; that a notice to begin the work specified in said contract had been duly given and the deceased had entered upon said employment and had performed the conditions of said contract; that no part of said salary had been paid.

The prayer of the complaint was for $ 1,800, covering the salary for a period of six months.

A copy of the contract is attached to and made a part of the complaint.

The defendant filed its answer, in which, after admitting the jurisdictional facts and matters of inducement, together with the execution of the contract, it denied all other allegations contained in the complaint. The defendant also set up as an affirmative defense that the deceased had not performed any services under said contract; that it was agreed between him and said district that the contract should not become operative, and that no salary should be payable unless and until a certain loan was obtained from certain banks by said district; that said loan was never obtained, and that for that reason the contract never became operative and the deceased never performed any services for said district under it. It was further alleged that the deceased had never complied with any of the conditions of said contract.

The case was tried to the court without a jury. The court made the following findings:

"(3) That on December 16, 1920, the said A. F. Parker and said defendant entered into a contract, a copy of which is attached to plaintiff's complaint, and that on said date said defendant notified in writing the said A. F. Parker to begin work under the terms and conditions of said contract.

"(4) The court finds that after said contract was made the said A. F. Parker did not do or perform any of the conditions or terms of said contract and did not enter upon the performance of any of his duties in said contract and no work was ever done under said contract by the said A. F. Parker."

Upon the foregoing findings, the court entered its conclusions of law favorable to the district, and rendered judgment accordingly. The plaintiff appeals.

The evidence is without conflict. Indeed, the court found that the notice to enter upon the employment, and from the service of which the salary should become payable, was duly given. There was also some evidence, both documentary and oral, that the deceased did in fact perform some services for the district. True, the evidence is not conclusive, but there is substantial evidence to that effect and sufficient to sustain, and as we think sufficient to require, a finding that the contract became operative and that the deceased entered upon his employment. While the district court found that the required notice before mentioned was duly given, yet, in order to defeat a recovery, the court also found that the deceased "did not enter upon the performance of any of his duties in said contract." Ordinarily, therefore, we should be bound by the court's finding. In this case, however, we are of the opinion that, pursuant to the terms and under the law applicable the important question was whether the contract became effective. The contract provided that upon notice by the district the employment could be terminated at any time. It further provided that in case of such termination the deceased should be paid at the rate of $ 300 per month for the time the contract remained in force. The salary, therefore, did not depend upon the amount or nature of the services rendered by the deceased, but upon whether he was in the employ of the district pursuant to the terms of the contract. The district court, however, it seems, held that the right to compensation depended upon the amount of services rendered rather than upon the employment under the contract. In so holding we are of the opinion that the district court erred.

While we do not agree with counsel for the plaintiff that the deceased was a public officer and hence was entitled to...