Pomerene v. Sch. Dist. No. 56 of Butler Cnty.

• Decision Date: 23 September 1898
• Citation: 56 Neb. 126,76 N.W. 414
• Parties: POMERENE v. SCHOOL DIST. NO. 56 OF BUTLER COUNTY.
• Court: Nebraska Supreme Court

56 Neb. 126

76 N.W. 414

POMERENE

v.SCHOOL DIST. NO. 56 OF BUTLER COUNTY.

Supreme Court of Nebraska.

Sept. 23, 1898.

Syllabus by the Court.

1. A school district may not incur indebtedness in the erection of a school house, and issue in evidence thereof warrants payable at a future date, and bearing interest. State v. Sabin, 58 N. W. 178, 39 Neb. 570, followed.

2. A contract with a district board providing for payment in such time warrants is tainted with the same vice as the warrants themselves, and no recovery can be had thereon.

3. Whether a person who has performed work under such a contract may recover therefor on an implied assumpsit, not decided; it appearing that the action, so far as based on that theory, was barred by the statute of limitations.

Error to district court, Butler county; Wheeler, Judge.

Action by Lewis W. Pomerene against school district No. 56 of Butler county, Neb. Judgment for defendant. Plaintiff brings error. Affirmed.Ricketts & Wilson, for plaintiff in error.

A. J. Evans and Steele Bros., for defendant in error.

IRVINE, C.

In substance, the petition in the district court alleged that the voters of the defendant school district, September 12, 1887, authorized the issue of bonds in the sum of $16,000 to complete a ward-school building, and to erect a high-school building, and at the annual meeting held April 2, 1888, the board of education was by the electors authorized to put into the high-school building, then in course of construction, a steam-heating apparatus; that, of the proceeds of the bonds, $4,000 was used in completing the ward building, and $10,000 in constructing the high-school building; that the board advertised for bids for the steam-heating apparatus; that Pomerene & Percival tendered a bid therefor, and the contract was let to them. A copy of the bid and acceptance is incorporated into the petition. The bid provides for payments as follows: “On completion of the work, $325 cash payment; $500 in warrant due Sept. 1, 1890; $500 in warrant due March 1, 1891.” The petition then alleged that the board of education accepted the work September 2, 1889, and issued warrants in accordance with the contract; that the warrant last to mature had not been paid, although a tax had been levied and collected sufficient to pay it. It was further averred that the price stipulated was the reasonable value of the work performed, and that the claim is now the property of the plaintiff. A demurrer to this petition was sustained, and the action dismissed. It will be seen that the petition, while drawn in a single count, has a triple aspect. It might be regarded as a suit on the warrant, a suit on the special contract, or on a quantum meruit. So far as the action is based on the warrant, it has already been by this court decided adversely to the plaintiff. State v. Sabin, 39 Neb. 570, 58 N. W. 178. That was an application for a writ of mandamus to compel payment of the warrant. At the close of the opinion it was said that the court was not then required to determine what...