Parker v. Weber County Irr. Dist.

• Decision Date: 24 September 1926
• Docket Number: 4432
• Citation: 251 P. 11,68 Utah 472
• Court: Utah Supreme Court
• Parties: PARKER v. WEBER COUNTY IRR. DIST

251 P. 11

68 Utah 472

PARKER v. WEBER COUNTY IRR. DIST

No. 4432

Supreme Court of Utah

September 24, 1926

Rehearing Denied November 29, 1926.

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 to grant a new trial (236 P. 1105). After new trial, judgment was entered for plaintiff. Claims interposed at that trial by the county and state were found in favor of claimants and judgment entered accordingly. From all these judgments the District appeals.

REVERSED and remanded for new trials.

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

Pratt & Pratt, of Ogden, for respondent.

STRAUP, J. THURMAN and CHERRY, JJ., FRICK, J., concurring. GIDEON, C. J., did not participate.

OPINION

STRAUP, J.

A. F. Parker, a civil engineer, brought this action to recover from the district on a written contract entered into between him and the district on December 16, 1920. By the terms of the contract he was to make surveys, plans, drawings, and specifications of a proposed system of waterworks for the irrigation of the district and was to have charge of the work and be paid $ 300 "on the 1st day of every month during the progress of the work." The contract contained a provision that Parker was not to begin the work "nor was the said employment or salary to commence until the board (of the district) shall have served him with written notice to begin said work." It further provided that Parker should not pledge or bind the credit of the district in making any purchase or incurring any expense without express authority from the board, and that the contract was to terminate six months from the date of the service of the notice, but that the district had the right of giving notice to terminate the contract at any time.

On the same day and at the same time the contract was signed, the board served Parker with written notice "to begin the work specified" in the contract, but the district averred and offered to prove that in connection therewith, and at the same time the notice was handed to Parker, the board and its members told him not to begin the work or do anything until the board had obtained a loan from a bank or banks in Ogden City, an application for which was then pending and of which Parker had knowledge, and that it then was agreed between them that he was not to do any work under the contract and that he was not to be paid any salary until the loan was obtained. The court below excluded the offered testimony, but found that Parker had not entered upon the performance of any of his duties and had not performed any of the conditions or terms of the contract, and that no work was done by him under it, and hence rendered judgment in favor of the district. From that judgment Parker appealed, and on the appeal the district made cross-assignment presenting the rulings excluding its offered testimony. On that appeal this court held that there was some evidence to show that the contract became operative and that Parker had entered upon his employment and that he had rendered some services; that the salary did not depend upon the amount or nature of services rendered by him, but upon his employment in pursuance of the terms of the contract, and "according to the evidence as it now stands the contract was in force for atleast some time, if only for a few days"; and that hence Parker "was entitled to a finding respecting the length of time the contract remained in force after the notice which made it operative was served." But this court further held "that the district had set up a complete defense" to plaintiff's cause by alleging that the contract never became effective and that the court erred in excluding the proffered testimony of the district to the effect that the contract was not to become operative until the loan was obtained to defray the expenses of the district, and that "if the defendant should establish its defense and such should be the finding of the court, then it is very clear that the plaintiff cannot recover. If, upon the other hand, the evidence should not be changed to the effect that the contract of employment became effective and the finding of the court is to the same effect, then the plaintiff is entitled to recover some salary, however small." The judgment was thereupon reversed and the cause remanded for a new trial. Parker v. Weber County Irr. Dist., 65 Utah 354, 236 P. 1105.

On the retrial of the case no additional or further evidence was adduced on behalf of Parker. It, however, was stipulated that the evidence on his behalf on the first trial should be considered as evidence on the second trial. But the district now was permitted to prove what on the first trial was excluded. In such respect it by three witnesses, members of the board, proved that on the day the contract was signed and the notice served on Parker the district had pending an application for a loan the obtaining of which was uncertain, and that they told Parker that notwithstanding the notice that he was not to proceed with the work or to do anything, to which Parker consented, and that it was thereupon understood and agreed between them that neither the contract nor the notice was to be effective or operative and that Parker was not to be paid any salary until and upon the condition that the loan was obtained; that the loan was not obtained; and that no work was done by Parker under the contract after it was signed. The substance of that testimony is not disputed. The court, however, found the making of the contract on December 16, 1920, the service of the notice on the same day, and that Parker "immediately entered upon the performance of his services as such engineer, and from thence during the period of six months mentioned in said agreement rendered to the defendant such services as such engineer as said defendant through its board required of him," and "that it was not at any time agreed or understood that" Parker "should not perform any service under said contract nor that his salary should not become due or payable thereunder until said defendant could or should succeed in making a loan sufficient in amount to carry on or pay the salary," and that the notice was not delivered upon any such condition, but that the contract became immediately effectual upon its execution and upon the service of the notice, and that the only condition imposed upon Parker was that he was not to pledge or bind the credit of the district in making any purchase or in incurring any expense other than his salary until the loan was obtained, but that no loan was obtained. Consequently the court now rendered judgment in favor of the plaintiff and against the district for the full period of the contract, six months, at the rate of $ 300 per month, or in a total sum of $ 2,472, including interest.

Between the first trial and the second, and in October, 1925, the district filed a petition for a dissolution of the district, alleging, among other things, its inability and failure to "function" and that it had not "functioned" at any time since its organization. Upon the filing of such petition, due notice was given by publication for the presentation of claims. Among the claims presented was the claim of Weber county in the sum of $ 3,674.84 and the claim of the state in the sum of $ 2,477.31, and an objection on behalf of Parker to a dissolution until his claim, amounting to over $ 2,400, was paid. So among the issues tried was not only the pending action of Parker, but by stipulation also the claims of the county and the state. To those claims the district interposed the statute of limitations. The court found the issue in favor of the state and the county and rendered judgment accordingly. From all these judgments the district now prosecutes this appeal.

As to the Parker judgment, it contends that the findings heretofore referred to are against the evidence; as to the judgments in favor of the state and county, that the claims are barred. We think the contentions are well founded.

First, as to the Parker judgment: The point is urged on behalf of Parker that the testimony of the members of the board that the contract was not to become effectual and the salary of Parker not to be paid until the loan was made varied the terms of the contract, and especially of the notice, and thus if not improperly received, the effect to be given it as evidence should be regarded as inconsistent with the terms of the notice. Such was one of the questions involved and decided on the first appeal. The effect of that decision is that such testimony did not go to the contents of the contract or to the notice, and that notwithstanding the notice it was competent to show by parol that neither the contract nor the notice was to become operative until the loan was obtained, and that if the pleaded defense in such respect was established it was a completed defense to Parker's cause. We thus consider the matter from such viewpoint.

The witnesses testified on behalf of the district that when the contract was signed and the notice served, which were on the same day, it was understood and agreed that the contract was not to become operative nor the notice effectual, nor the salary to begin, until the loan was obtained; that no loan was obtained and that no work was done nor any services rendered by Parker under the contract. The claim is made by respondent that what the witnesses in fact testified to was merely that Parker was not to purchase anything or to incur any expense other than his salary until the...