Scott v. Scotts Bluff County

• Decision Date: 23 June 1921
• Docket Number: 21572
• Citation: 183 N.W. 573,106 Neb. 355
• Parties: FREMONT SCOTT, APPELLEE, v. SCOTTS BLUFF COUNTY, APPELLANT
• Court: Nebraska Supreme Court

183 N.W. 573

106 Neb. 355

FREMONT SCOTT, APPELLEE, v. SCOTTS BLUFF COUNTY, APPELLANT

No. 21572

Supreme Court of Nebraska

June 23, 1921

APPEAL from the district court for Scotts Bluff county: WILLIAM H WESTOVER, JUDGE. Affirmed.

AFFIRMED.

J. L Grimm and Morrow & Morrow, for appellant.

F. A Wright and Mothersead & York, contra.

Heard before MORRISSEY, C. J., ALDRICH, FLANSBURG and ROSE, JJ., ALLEN and REDICK, District Judges.

OPINION

ALLEN, District Judge.

The plaintiff, Fremont Scott, filed a claim against Scotts Bluff county with the board of county commissioners for $ 1,684.50 for 1,123 days' services as jailer at $ 1.50 a day in caring for prisoners confined in the county jail. From an order refusing to allow his claim he appealed to the district court, where the case was tried to the court, a jury being waived, and judgment was entered for the defendant, and Scott appealed to this court, where the judgment was reversed and the case remanded for further proceedings.

On a retrial to a jury before Westover, Judge, sitting for Hobart, Judge, the court directed a verdict for the plaintiff in the sum of $ 1,964.50, and from judgment thereon this appeal was taken.

September 30, 1913, by a resolution duly adopted, the board of county commissioners employed the plaintiff as "janitor for courthouse, salary $ 50 per month," and the next day, October 1, 1913, the sheriff duly appointed him "deputy sheriff to act as jailer and to do other work pertaining to the office of sheriff." October 4, 1913, he duly qualified as deputy sheriff and jailer and entered upon the discharge of his duty as jailer on the 7th, the bond reciting that "Fremont Scott has been appointed deputy sheriff and jailer in and for Scotts Bluff county, Nebraska."

1. The defendant does not seriously contend that the services were not performed by the plaintiff as he claims, but it is said that by a contract with the board of county commissioners he was to act as janitor and jailer at $ 50 a month, that the evidence on the second trial differs from that on the first, and that the rule, the law of the case, does not apply.

On the first trial, Harry Johnson, chairman of the board of county commissioners, testified as follows: "Q. Mr. Johnson, on that day the record shows that Fremont Scott was appointed janitor for the courthouse. Do you know whether or not that contains the complete transaction that was made there that day? A. The record does not show the complete transaction that took place. Q. What was the complete transaction? A. I invited Mr. Scott in the office and asked him if he would take care of the courthouse and jail at $ 50 a month, and Mr. Scott said he would." On the second trial Johnson testified as follows: "Q. Do you remember the conversation that took place between the commissioner and Mr. Scott at that time? A. I know what the agreement was. Q. What was the agreement? A. Mr. Scott agreed to take care--It was the understanding that Mr. Scott was to take care of the jail and to do the janitor work at $ 50 a month. Q. And did he agree to that? A. He agreed to that."

We think that the evidence was...