Peterson v. State
| Decision Date | 23 May 1925 |
| Docket Number | 24376 |
| Citation | 203 N.W. 1002,113 Neb. 546 |
| Parties | EDWARD PETERSON ET AL., APPELLEES, v. STATE OF NEBRASKA ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.
AFFIRMED.
O. S Spillman, Attorney General, and Lloyd Dort, for appellants.
Jacob Fawcett, Thomas S. Allen and D. W. Merrow, contra.
Heard before MORRISSEY, C. J., DEAN, DAY and GOOD, JJ., and REDICK District Judge.
Action by plaintiffs to recover from the state of Nebraska a balance of $ 47,428.72, alleged to be due upon a contract for the construction of a public road. By agreement of parties a jury was waived, and trial had to the court, resulting in a judgment in favor of the plaintiffs for $ 30,305.54 with interest thereon, aggregating $ 33,459.41. Defendant appeals.
It appears that on May 5, 1921, the plaintiffs entered into a contract with the department of public works, acting for the state of Nebraska, to construct a road designated as Federal Aid Project, No. 102 A, in Sioux county. In the notice to contractors calling for bids for the construction of the road, the quantities of materials to be removed, such as earth, solid rock, loose rock, and other materials, were stated as estimates and were to be used only as a basis for bids.
The plaintiffs submitted a bid in which they proposed to remove the earth for 39 cents a cubic yard, the solid rock for $ 1.80 a cubic yard, the loose rock for 90 cents a cubic yard, and other materials for prices a cubic yard set forth in the proposal. Based upon the estimated amount of material to be moved in the various classifications, the plaintiffs bid $ 68,613.97.
The proposal, submitted by plaintiffs, contained a stipulation as follows:
"This proposal is made with the understanding that the various items of work may be necessarily increased or decreased, and that these unit prices will apply to the increased or decreased quantities as fully as to the estimates of quantities as given herein."
The plaintiffs' proposal was accepted, and a contract embodying the terms of the proposal entered into.
There is no dispute about the total number of cubic yards of material removed. The controversy arises over the classification of certain quantities of material removed. The plaintiffs claim that, in the performance of the contract, they were required to excavate and remove 52,000 cubic yards of solid rock, 15,000 cubic yards of loose rock, 58,198 cubic yards of earth, and other smaller items not necessary to set out in detail, for which, under the contract, they were entitled to receive $ 129,296.01, of which sum the plaintiffs have been paid $ 81,867.29, leaving a balance due of $ 47,428.72.
The specifications, which were a part of the contract, defined the various materials to be removed, and, so far as pertinent to the present controversy, were as follows:
Two main contentions are made on behalf of the state for a reversal of the judgment: First, that the court was without jurisdiction to hear and determine the cause; and, second, that the evidence does not support the judgment.
It is urged by counsel for the state that the court was without jurisdiction because permission was not granted by either branch of the legislature to sue the state.
It appears that before the action was brought the plaintiffs presented their claim to the department of public works for approval, which was denied. The board, by its secretary, indorsed upon the claim: "This bill is disapproved by reason of a disagreement as to classification." Plaintiffs then presented the claim to the auditor of public accounts, and demanded that he issue the usual warrant in payment thereof. The auditor indorsed on the back of the claim:
The Constitution, article V, sec. 22, provides:
"The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suit shall be brought."
Acting upon the mandate of the Constitution, the legislature of 1877 passed an act entitled: "An act to provide in what courts the state may sue and be sued." Laws 1877, p. 19. The provisions of this act, in so far as they affect the question now being considered, are set forth in sections 1100, 1105, Comp. St. 1922.
Section 1100 provides:
Section 1105 provides:
"The state may be sued in the district court of the county wherein the capital is situated, in any matter founded upon or growing out of a contract, expressed or implied, originally authorized or subsequently ratified by the legislature, or founded upon any law of the state."
In State v. Stout, 7 Neb. 89, the court had under consideration a case involving the construction of the provisions of the statute above set out. The opinion in the case clearly recognizes the right to maintain an action against the state based upon contract, expressed or implied but denied the right of the plaintiff to recover upon the ground that he had failed to present his claim to the auditor of public accounts for adjustment. In that case it was...
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