65 Neb. 60 | Neb. | 1902
This is a,n action brought in the district court for Brown county by the F. C. Austin Manufacturing Company against the county of Brown to recover the sum of $582.58, claimed as balance due pn the purchase price of three Austin reversible road machines or graders which plaintiff in error sold to defendant in error. It is disclosed by the petition that on May 24, 1892, plaintiff in error sold and delivered to the county of Brown three Austin reversible road machines at an agreed price of $675, being $225 each. The petition alleged that the machines were reasonably worth said sum; that they had been received and retained by the county and used by it ever since; that in May, 1893, defendant in error delivered to plaintiff in error county warrants for the sum of $225 and interest, being in full payment for one of the three road machines;
Many questions are presented and argued in briefs, most of which we do not deem necessary to consider. The principal question raised by plaintiff in error is that the answer filed by defendant in error failed to state any defense, and that plaintiff in error was entitled to a judgment for the amount due upon the pleadings. The answer in question, omitting formal parts, is as follows:
“Comes now the defendant Brown county by E. M. Davisson, county attorney, and in answer to the petition of plaintiff filed herein denies each and every allegation therein contained. Defendant further answering the petition of the plaintiff, alleges the facts to be as follows: During the first part of the year 1892 the board of county commissioners, composed at that time of J. A. Nay, chairman, J. B. Williams and T. A. French, members, negotiated with the plaintiff for the purchase of three road graders at an agreed price of $625; that a committee was appointed of their number to try said graders, and if found satisfactory, to accept the same; no' report of said committee was ever made, but it is presumed that they were accepted, as the machines have been in use of the county ever since. In payment of the road graders, the county commissioners, J. A. Nay and J. B. Williams, French being absent from the county at the time, issued to the plaintiffs three promissory notes, which are a part of the files in this case and will not be set out herein. The first one of these notes was paid by warrant on the subsequent levy of the year following, but the other two stand unpaid, and are the basis of the action sued herein.
The substance of this anSAver is that the county purchased the road machines as set out in plaintiff’s petition, accepted them and has used them ever since, and that at the time the contract was made, no money was in the county treasury upon which a warrant could have been drawn. It is very apparent that this anSAver wholly fails to state a defense. The plaintiff Avas entitled to a judgment upon the pleadings for the amount due.
Defendant in error bases its contention upon section 34, article 1, chapter 18, of the Compiled Statutes, 1899, which is as folloAVS: “It shall be unlawful for the county board of any county in the state to issue any warrants for any amount exceeding the aggregate of 85 per cent of the. amount levied by tax for the current year, except there be money in the treasury to the credit of the proper fund for the payment of the same; nor shall it be lawfful for the county board to issue any certificate of indebtedness in any form in payment of any account or claim, nor to make any contracts for or to incur any indebtedness against the county, in excess of the tax levied for county expense during the current year, nor shall any expenditure be made or indebtedness be contracted to be paid out of any of the funds of said county in excess of the amount levied for said fund.” Defendant in error contends that inasmuch as the contract was entered into on the 24th day of May, 1892, the tax for that year not having at that time been
Having reached a conclusion that the case must be reversed, other questions, including the question of the extent to which the county had a right to contract, will
By tbe Court: For tbe reasons stated in the foregoing opinion, tbe judgment of tbe district court is
Reversed.