102 Neb. 677 | Neb. | 1918
Lead Opinion
This suit was originally commenced by the plaintiff and cross-petitioners who furnished material for improvements made on the main- building of Tabitha Home, a charitable institution, to foreclose tbeir me-' chanics ’ liens. The trial court allowed the liens. The defendant Tabitha Home appealed. Our opinion is reported in 95 Neb. 491. In reversing the case we held that the. improvements were made for the construction
We are of opinion that the question of the right of the. materialmen to a judgment against the defendant for' the value of the material furnished was passed upon in our former opinion and judgment, which decision has become the law of the case. We are of opinion, too, that we were right in holding that the trustees of the' corporation would not be empowered to contract for the expenditure of its funds to build a hospital, and that persons dealing with a public charity are bound to know the extent of its powers.
It. is insisted,. however, that, these materialmen all supposed that they were dealing with the home in improving its main building, which was at the time and has since been used by its inmates; that the improvements made and material furnished were more or less for the benefit of the home. We are of opinion that the record does show that these contentions are true. It is further insisted that the officers have, as they promised to do, raised a fund for the satisfaction of the claims of these
We have concluded to remand this case to the district court, with leave to the parties to amend their pleadings so that the exact value of- improvements beneficial and necessary to the home may he determined, and, if it is further found that the home has made provision for or has'raised' a fund donated for the purpose of paying the value of such improvements, then an order should he made requiring the application of any fund so raised pro rata to the payment of the claims of these materialmen, so far as the court may find the improvements made were necessary and beneficial to the home for the purposes for which it was established under the law.
Reversed and remanded.
Dissenting Opinion
dissenting.
Upon the former appeal of this case, I dissented because “unable to agree with the conclusions of fact announced in the opinion, and also with the legal principles stated as applying- to the facts in evidence in the case.” 95 Neb. 491.
I regret that I am again compelled to dissent. The facts are that certain individuals, most of them members of the Lutheran church, adopted articles of incorporation, which recited that the objects and business of the corporation are: “(1) To erect and maintain an orphan home for the benefit of the orphans of our land. (2) . To erect and maintain a place where the sick and needy and feeble may he cared for.”
The case was remanded to the district court, where it was sought unsuccessfully to recover a judgment for the contract price. The majority opinion denies the right to such a judgment, but sends the case back to ascertain the amount of a somewhat uncertain, doubtful, or mythical fund, and to apply it pro rata on the claims. I am unable to agree with this' conclusion. It has always been my opinion that the materialmen were entitled to the liens they asserted. Most certainly, if not entitled to liens, they should be entitled to a judgment .against the corporation for the price of the articles supplied. To hold otherwise is to permit a corporation organized for charitable purposes to use charity as a sword, and not. as a shield, and to obtain property of others without paying for it, which is repugnant to every legal and moral principle. Charity is said to cover a multitude of sins. In this case it is used to cover the wrongful deprivation of these merchants of their property without compensation. If it would be a diversion of charitable funds to pay for the goods, it is certainly a diversion of them to indulge in the cost of litigation to defeat just and meritorious claims.