104 N.W. 525 | N.D. | 1905
This cause was tried in the district court under the provisions of section 5630, Rev. Codes 1899. This court so held on a former appeal from an order denying a new trial in this case. 12 N. D. 497, 97 N. W. 860. The appellant has not demanded a trial de novo on this -appeal, and is therefore not entitled to a review of the evidence on the appeal. State v. McGruer, 9 N. D. 566, 84 N. W. 363; Security Improvement Co. v. Cass. County, 9 N. D. 555, 84 N. W. 477. It therefore remains only to determine whether .the pleadings and findings will sustain the judgment.
The action was brought upon an order issued by the township board of the town of Norton to the Fleming Manufacturing Company, as evidence of a portion of the purchase price of a road grader purchased by said -board, which order is as follows:
“Treasurer of the town of Norton, Walsh county, state of No-rth Dakota: Pay to Fleming Manufacturing Company -or order, the*145 sum of one hundred1 dollars out of any moneys in the treasury not otherwise appropriated, being due Jan. 1st, 1901, without interest. No. 18,646. J. H. Langton, Chairman of Supervisors. Countersigned, H. J. Axtel, Clerk.”
The complaint alleges the -due and authorized execution of the order, and sets it forth in full; its due assignment to the plaintiff; its due presentment to the township treasurer for payment; the refusal to pay and a demand for judgment for the amount of money due thereon, with costs-.
The answer contains (1) a general denial; (2) that the order was issued without the alleged essential prerequisite to its issue of a petition of a majority of the freeholders of the township to the chairman of the township board praying that he contract for or purchase the machinery desired upon credit or otherwise. Other defenses are alleged, but become immaterial, as the evidence cannot be reviewed.
Finding's of fact were made by the trial court to the effect that all the allegations of the complaint are true; that the township board purchased the grader -described in the complaint, -and issued the order set forth in the complaint for a part -of its purchase price; that the amount of the purchase price was duly audited by said board at a regularly called meeting thereof; that the plaintiff -is the owner of said o-rde-r; and that the same was duly presented for payment, and payment refused. As conclusions of law -the court f-oun-d that the purchase of the grader was made under legal authority regularly exercised, and that the plaintiff is entitled to the relief demanded in the complaint.
The appeal is from the judgment adjudging the recovery of the amount of the order with interest and costs. The appellant’s principal contention is that the township board had no authority under the statute to purchase the grader. The statute under which it is claimed that the -township- board acted is section 1115a, Rev. Codes 189-9, which reads as follows: “The township board of any township is authorized to-purchase for the use of the township, upon credit or otherwise, any tools, road machine or road grader, or either -of them, o-r one or more of either of them for the use of the township, or the use of the overseer of the districts therein, as in this article provided-. Such implements when purchased, shall be paid for -in not to exceed five annual payments out of the -highway tax of the township, according to the contract therefor, and the chairman of the township board shall issue orders for the payment of the
The appellant further contends that the township is not liable in this action, as the plaintiff has sued the township as liable generally upon the order, and insists .that the order is not binding upon the towiishi-p as a general liability, but that the town-ship- is liable only after the taxes for the payment of the machine have been levied pursuant to section 111-5'a; and further insists that the order should have been -drawn upon the special fund to be raised from taxation, and1, not -being so drawn, that it is void. We cannot agree to -this contention as a matter of law. Section 1115a is a general provision governing the purchase of road machinery by t-ownship boards. It provides for the purchase of machinery “on credit or otherwise.” This language necessarily indicates that purchases on credit and taxation after the -purchase are not the only mode of securing such m-achineiy. If so, the wor-d> “otherwise” becomes entirely meaningless, and of no force. If not purchased on
There are other assignments of er-r-or, but as they involve an examination of the evidence they cannot be considered for the reason above stated. „
The judgment as entered includes -interest at 8 per cent from the -date of the order. This was error. Legal interest from January 1, 1901, -only is chargeable. The judgment is modified to that extent, and, as thus modified, will -be affirmed, and it is so ordered.