9 S.D. 420 | S.D. | 1896
This is an original action, brought against the state under the provisions of Chap. 1, Laws 1890, to recover damages alleged to have been sustained by the plaintiff and his assignor by reason of the failure of the state to furnish to them with certain printing, to which they claim they were entitled under printing contracts made with them by the state during the fiscal year of 1892-93. The case was, by agreement of the respective counsel, referred to a referee, who found the facts and stated his conclusions of law thereon, and has returned the same to this court, with a statement of the exceptions, and his rulings, and the evidence taken on the trial. The attorney general, on behalf of the state, has served and filed a number of exceptions to the findings of fact by the referee. In order to a proper understanding of the exceptions taken by the attorney general, it will be necessary to make a brief statement of the nature of the claim made for damages by the plaintiff. In June, 1892, the secretary of state, under the provisions of Chap. 99, Laws 1891, advertised for bids for the various classes of state printing; and the third class was awarded to the Free Press Company, and a contract entered into with that company on or about August, 1892. This contract, soon after its execution, was assigned to the plaintiff. One William G. Yates
The attorney general also contends that the amount of damages for the printing of the three reports found by the referee was excessive, and is not supported by the evidence. In this contention, we are of the opinion that the attorney general
Exception is also taken to the fourth finding of fact by the referee, in the second cause of action, for the reason that the referee found that the plaintiff sustained damages for the failure to furnish to him for printing, under his contract, the printing for the hospital for the insane, state militia, state agricultural college, school for deaf mutes, school of mines, state board of charities and corrections, state board of equalization, state penitentiary, Madison normal school, Spearfish normal school, local board for soldiers’ home, state university, board of railroad commissioners, and state board of health. The aggregate amount of damages, as allowed to the plaintiff as assignee of said Yates, is about $600 by reason of these reports not being furnished to the said Yates to print.
The attorney general contends that the printing for these reports» of institutions or boards is neither included in the Yates contract nor required, by the statute, to be printed by the contractor for printing under the act. Yates, by his contract “agrees and undertakes to make, print, and furnish circulars, blanks, letter heads, note heads, envelopes, lists of standing committees, roll calls, resolutions, blanks, blank reports of committees, names of members of legislature, labels for desks, signs for committees, cards and blanks of all kinds for the use of the state officers and the legislature of the state of South Dakota for the period of one year frq$*. July 1, A. D. 1892, including incidental printing for the legislature in said year and to furnish the material and perform the labor in producing the same.” This contract was evidently intended to include printing of the fifth class, specified in Section 1. The
The attorney general further contends that the plaintiff was allowed damages on account of the Yates contract for failure to furnish catalogues, which are substantially pamphlets, specifically excepted from class 5; and also damages for blank books, plat books, etc., not included in his contract, and for which he was not entitled to recover damages. We think the attorney general is right, and we sustain his exceptions to these items. The following items of damages should, therefore, be deducted from the amount of damages allowed Yates on his contract, namely: Catalogues for agricultural college, $81,45; catalogues for Spearfish normal school, $95.75; house and senate journals, office of secretary of state, $15; plat books in the office of commissioner of school and public lands, $39.60; ledger and journal in office of state treasurer, $15; blank books in state auditor’s office, $45, — aggregating $273.80. This sum, together with $340 excess, allowed on the Free Press Company contract, making a total of $612.80, should be deducted from the total allowed plaintiff by the referee.
We have not deemed it necessary to re-refer the case to the referee, but have concluded that this court can properly make the deduction. The plaintiff will, therefore, be entitled to a judgment for $410 on the Free Press Company contract, with interest from June 30, 1893, and $966>.45 on the Yates contract, with interest from September 24, 1894, and for which judgment will be entered by the clerk of this court. The exceptions not herein specifically mentioned are overruled.