Weitz v. Independent Dist. of Des Moines

• Decision Date: 01 June 1889
• Parties: WEITZ v. INDEPENDENT DIST. OF DES MOINES ET AL.
• Court: Iowa Supreme Court

78 Iowa 37

42 N.W. 577

WEITZ

v.INDEPENDENT DIST. OF DES MOINES ET AL.

Supreme Court of Iowa.

June 1, 1889.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

Action in equity to restrain the payment of money. A demurrer to the petition was sustained, and plaintiff, electing to stand upon his petition, appeals.Phillips & Harrison, for appellant.

St. John, Stevenson & Whisenand, for appellees.

ROBINSON, J.

The petition alleges that plaintiff is a citizen and tax-payer of the independent district of Des Moines; that said district is a defendant, and that its co-defendants are the persons constituting its board of directors, its secretary, and treasurer; that on or about the 20th day of June, 1888, said board of directors entered into an agreement for the erection of a new high-school building for the sum of $52,425, and at the same time, and as a part of the same transaction, employed the defendant F. S. Whiting as local superintendent of the construction of said building, at the agreed compensation of 2 per cent. of said contract price; that Whiting pretends to be acting as superintendent pursuant to his said employment; that he has been paid about $100 on account of said employment, and that defendants, unless restrained, will pay him the remainder of his alleged compensation; that when said agreement for the erection of a school building was entered into, and when Whiting was employed as aforesaid, he was, and ever since has been, a member of said board of directors, taking an active part in its proceedings. The plaintiff asks that defendants be restrained from making further payment to Whiting on account of his said employment, out of the funds of the district. The ground of the demurrer is that the facts stated in the petition do not entitle plaintiff to the relief demanded.

1. It is insisted by appellant that this case falls within the rule announced in Moore v. Independent Dist., 55 Iowa, 654, 8 N. W. Rep. 631. That case decided that a director could not recover compensation for services rendered officially. It is contended by appellee that the services contemplated in the employment of Whiting were not those required of him as a director, and that he is entitled to compensation for his services rendered as a private citizen. The distinction which appellee seeks to draw is not apparent in the petition, and we are unable to distinguish in principle between this case and the one cited. In this case the director was employed “as local superintendent” of the construction of the building; in...