Walker v. Turner

• Decision Date: 27 June 1889
• Citation: 42 N.W. 918,27 Neb. 103
• Parties: MACK WALKER v. JONATHAN TURNER
• Court: Nebraska Supreme Court

42 N.W. 918

27 Neb. 103

MACK WALKER v. JONATHAN TURNER

Supreme Court of Nebraska

June 27, 1889

ERROR to the district court for Buffalo county. Tried below before HAMER, J.

AFFIRMED.

Marston & Nevius, for plaintiff in error, cited: Atkins v Atkins, 9 Neb. 191; McGavock v. Pollack, 13 Id., 535; Grebe v. Jones, 15 Id., 315; Holmes v Holmes, Id., 615; Potter v. C. & N. W. Ry. Co., 1 Id., 14; Bishop on Contracts, secs. 185, 187; Winchester v. King, 46 Mich. 102; Bartling v Behrends, 20 Neb. 211.

John M. Stewart, for defendant in error, cited: Crowell v. Galloway, 3 Neb. 220; Kane v. People, 4 Id., 509; Burnham v. Doolittle, 14 Id., 215.

OPINION

REESE, CH. J.

This action was instituted in the district court of Buffalo county, the purpose of which was to recover from plaintiff in error the sum of $ 2,500, alleged to be due defendant in error for certain services rendered on behalf of plaintiff in error in procuring the adoption of a certain pump to be used in the system of water works constructed for the city of Kearney. The allegations of the petition were substantially that at and prior to the time of the contract which is alleged to have been entered into between plaintiff and defendant the city of Kearney was desirous of constructing a system of water works; that plaintiff in error was the manufacturer of a certain pump known as the Walker pump, and that he employed defendant in error to assist him in presenting to the city council of the city of Kearney the merits of said pump and inducing them to cause the same to be adopted in connection with the water works system of the city of Kearney. It was alleged that the contract between plaintiff and defendant was made in the city of Chicago, where defendant in error had gone at the request of the plaintiff, and during an interview held between them; that in pursuance of said contract defendant in error returned to the city of Kearney, and by canvassing the matter of the construction of water works with the citizens and members of the city council he induced them to adopt the system of water works constructed by the corporation known as the American Water Works and Guarantee Company, Limited, with a condition in the contract with such company which required them to adopt the wheel or pump of defendant in error as the pumping power of said system of works. It is unnecessary to notice further the allegations of the petition.

By his answer plaintiff in error admitted the allegations of the petition concerning the purpose of the city of Kearney to construct the system of water works, the adoption by the council of said city of the works as constructed by the American Water Works and Guarantee Company, Limited, the franchise being granted to them, and the adoption of the pump manufactured by plaintiff in error. In connection with the denial on the part of plaintiff in error, that defendant in error was employed by him or assisted him in procuring the adoption of his pump as part of the water works system of the city of Kearney, it is alleged that whatever services were rendered by defendant in error were rendered in favor of the water works company above named and not for him, and that defendant in error had been fully paid by the said water works company for his services. All the allegations of the petition not admitted were denied. The reply amounted to substantially a general denial of all the allegations of the answer. The cause was tried to a jury, which resulted in a verdict in favor of defendant in error for the sum of $ 500. Plaintiff in error alleges errors occurring upon the trial and prior thereto, and brings the case to this court by proceedings in error.

Before plaintiff in error answered, he appeared specially and objected to the jurisdiction of the court, for the reason that there was no legal service of summons upon him, either actually or constructively. The challenge to the jurisdiction of the court was overruled, to which plaintiff excepted, and now assigns the ruling of the district court upon this objection as error. The record does not show that completed service was ever made upon plaintiff in error, and it is quite probable that at the time of the filing of the motion, and the ruling thereon, the court did not have jurisdiction of the person of plaintiff in error. But after the ruling of the district court plaintiff in error appeared generally and answered to the full merits of the case without raising any question as to the jurisdiction. The cause proceeded to trial and was tried upon the merits of the contest between plaintiff and defendant alone. Without stopping to discuss the question here presented, we think it is well settled in this state that a general appearance of the character made by plaintiff in error in this case will waive any defect in the service of summons or want of jurisdiction. (Crowell v. Galloway, 3 Neb. 215; Burnham v. Doolittle, 14 Neb. 214, 15 N.W. 606.) The objection now that the district court did not have jurisdiction over the person of plaintiff in error cannot avail him. As we have seen, the plaintiff's cause of action was to recover upon the quantum meruit for services alleged to have been performed for plaintiff in error, and that by performing the services rendered upon the request of plaintiff in error there was an implied obligation on the part of plaintiff in error to have paid a reasonable compensation therefor; that is, what it was worth. In the course of the examination of defendant in error, when upon the witness stand, in which he detailed several conversations had between the parties, he stated that plaintiff in error had said in his presence that he, plaintiff in error, would guarantee to defendant in error the sum of $ 2,000 to get his patent introduced in this state. This was objected to, as immaterial and incompetent, and a motion was made to strike it out, which was overruled. To this the plaintiff in error excepted, and now assigns this ruling of the court for error. This objection is made upon the ground that, as the action was upon the quantum meruit, it was not proper to allow the witness to testify to anything which would tend to prove an express contract on the part of plaintiff in error to pay a certain sum for the services. This is no doubt true, and the position taken by counsel for plaintiff in error would be correct were it a fact that by the evidence which was given defendant in error sought to establish a liability on the part of plaintiff in error by virtue of an express contract by which he agreed to pay a certain sum, but this we do not understand to have been the case. There was no evidence offered that an agreement between them was made by which plaintiff in error was to pay and defendant in error was to receive the sum of $ 2,000 for his services, but the evidence was received rather for the purpose of tending to corroborate the theory of defendant in error that he had been employed by plaintiff in error to render the services which he claims to have rendered. It was not claimed that defendant in error accepted the proposition and agreed to perform the labor for $ 2,000 or any other sum. The offer made by plaintiff in error to give that much, unaccepted by defendant in error, would...