Willow Springs Irr. Dist. v. Wilson

• Decision Date: 22 June 1905
• Citation: 104 N.W. 165,74 Neb. 269
• Parties: WILLOW SPRINGS IRR. DIST. v. WILSON.
• Court: Nebraska Supreme Court

74 Neb. 269

104 N.W. 165

WILLOW SPRINGS IRR. DIST.

v.WILSON.

Supreme Court of Nebraska.

June 22, 1905.

Syllabus by the Court.

An irrigation district may contract with a competent engineer to survey and furnish plans for the construction of a proposed canal, and from which the board of directors of the district may estimate the cost thereof, and the amount of bonds to be voted therefor. Such work is preliminary to the work of construction, and the expense thereof is not to be paid out of the construction fund.

In an action against a corporation based on a contract, the presumption obtains that the contract is within the power of the corporation to make, and that the officers executing it on behalf of the corporation acted within the law, unless the petition states facts showing the contrary.

Where a claim has been rejected or disallowed in part by the auditing board of a corporation, an original action may be instituted on the claim, in the absence of a statute directing other proceedings to enforce it.

Commissioners' Opinion. Department No. 2. Error to District Court, Garfield County; Paul, Judge.

Action by James Wilson against the Willow Springs irrigation district. Judgment for plaintiff, and defendant brings error. Affirmed.

A. M. Robbins, for plaintiff in error.

E. J. Clements and V. O. Johnson, for defendant in error.

DUFFIE, C.

The petition in this case alleges that the defendant is an irrigation district duly organized under the laws of this state; that on November 20, 1895, soon after its organization, and for the purpose of enabling its directors to determine the amount of money necessary to be raised for the purpose of constructing an irrigation canal, and acquiring the necessary property and rights therefor, it entered into a written contract with the plaintiff, by the terms of which it agreed to employ the plaintiff as engineer of said irrigation district, and to pay him for his services the sum of $5.50 per day for the time he was actually engaged in said services. A copy of the contract is attached to the petition. It is further alleged that the plaintiff performed 93 1/4 days' services for the defendant, in making the surveys and plans for an irrigation canal and works for said district, and estimates of the cost of constructing the same, which survey, plans, and estimates were accepted and adopted by the district; that on May 21, 1896, plaintiff presented to the defendant his account and claim for services amounting to $512.87, and the board of directors of the district audited said account, and allowed only $350 on the same; that defendant neglected and refused to pay the amount due plaintiff for his services, or any part thereof; and he asks judgment for the amount of his claim, with 7 per cent. interest from April 30, 1896. A demurrer was filed to this petition, which was overruled, and thereupon the defendant answered. A trial was had to the court, resulting in a judgment for the plaintiff below for the sum of $305.25, with interest from November 20, 1896, at 7 per cent. per annum, making altogether $458. The defendant has brought the case to this court by petition in error, but has failed to file a bill of exceptions showing the evidence taken on the trial. In this condition of the case, we can only examine the pleadings to determine whether they support the judgment entered.

It is vigorously contended by the plaintiff in error that the petition does not state a cause of action, and that it discloses facts avoiding the cause of action. The agreement made between the parties contains this stipulation: “The party of the second part further agrees to wait for the $5.50 per day, the consideration above named, until the same can be paid out of the first tax levy on said district provided the same is paid within one year from date.” It is urged that the district could not enter into any contract relating to the construction of the ditch until the funds had been provided to cover the expense, and School District v. Stough, 4 Neb. 357,Markey v. School District, 58 Neb. 479, 78 N. W. 932, and Pomerene v. School District, 56 Neb. 126, 76 N. W. 414, are cited in support of this contention. These cases were all based upon a statute which prohibits a school district from contracting for buildings and the furnishing of schoolhouses until the fund therefor is provided, and, unless the statute relating to irrigation districts contains a like prohibition, the authorities cited are not applicable. Section 6846 of Cobbey's Annotated Statutes of 1903 provides that “the costs and expenses of purchasing and acquiring property and constructing the works and improvements herein provided for shall be wholly paid out of the construction fund or in the bonds of said district at their par value. * * * For the purpose of defraying the expenses of the organization of the district and the care, operation, management, repair and improvement of such portions of said canal and works as are completed and in use,...