90 Neb. 565 | Neb. | 1912
This is a suit on a subscription of which the following is a copy: “Kearney, Nebraska, June 7, 1907. I hereby agree to pay one-fourth the cost of the 82 feet of church edifice with tower, yoted on April 11,1907, to be. built by
Among other things, it is alleged in the petition: There was full compliance on the part of plaintiff with the terms of the contract. The total cost of that part of the church edifice described in the subscription was $18,907.96. Builders’ estimates therefor were allowed and paid prior to April 28, 1909. Defendant made payments as follows: October 12, 1907, $175; December 4, 1907, $250. There was a prayer for judgment in the sum of $4,336.99 — the balance due. The signing of the instrument is admitted in the answer, but defendant alleges that it was signed pursuant to subscriptions taken April 11, 1907, at a meeting of the vestry, the minutes of which showed it was moved and carried that “We procure plans for a church of about the folio win g dimensions, viz., 130 ft. long, 48 .ft. wide, 48 ft. high, and that, we complete at this time a part equal to about 82 ft. in length, with the tower.” In the answer it was further alleged, in substance: The rector invited gifts toward the expense of the building, and obtained defendant’s pledge with that of twelve others for contributions to be expended upon the 82 feet of church edifice mentioned, commonly called the “nave.” Afterward, but before defendant executed the contract, plans for the nave were procured according to the action taken by the vestry. Defendant signed and delivered the contract relying' on such plans, and in accordance therewith the foundation was constructed. It was upon the cost of such foundation that defendant made his payments. He left the United States January 1,
“Now comes the above named plaintiff and, for reply to the answer of the defendant herein filed, says:
“(1) That it is true that defendant’s subscription, as set forth in said petition, was made fin pursuance of a pledge by him given at the meeting of the vestry of said church held April 11, 1907, the minutes of which are copied in defendant’s answer.
“(2) That it is untrue that, before the execution of the defendant’s contract set out in plaintiff’s petition, plans were procured for the 82 feet constituting the nave of said church, or that such plans, or any plan, was submitted to the defendant as the one according to which said edifice should be erected.
“(3) That in truth and in fact the building committee of said church, which included the defendant, negotiated with an. architect, named Guth, to prepare plans, elevations, working drawings, details and specifications for the erection of said church; and after discussing with*568 ilie sáid building committee the general features of the cliurch to be erected, the said architect prepared a plan for the foundation of the nave and chancel of said church, according to which said foundation was constructed; but that he failed, neglected and refused to make and furnish any further plans, elevations, working drawings, details or specifications or any plan whatever for the superstructure .of said church; and that no such plans were made until .another architect was employed, who made and furnished the plans, other than the foundation, according to which said building was constructed.
“(4) That the said defendant, after such other architect was employed, and knowing that the building committee was proceeding with the erection of said church upon plans furnished by such second architect, when requested to attend the meetings of the building committee of which lie was a member, told the other members of such committee that he did not care to attend such meetings, but that they should go on with the construction of said building, and that the money which he had subscribed would be ready for them.
“(5) That it is untrue that the obligation mentioned in said petition was assumed by defendant on condition that there should be no debt contracted in building said edifice unless there were funds provided for the payment thereof.
“(6) That after the commencement of said work, the church received a gift made for the purpose of assisting in the erection of a chancel at the same time with the nave of said church; and that it was thereupon determined to construct the entire church; and that at the time this determination was made the defendant was a member of the building committee, approved the same, and himself let the contract for constructing the foundation of the chancel.
“(7) That it is true that the building committee of said church, after having had and received bids for the construction thereof, employed a superintendent and erected*569 said church under his direction; but that it is untrue that the cost of said church was in excess of the lowest bid received from any person offering to erect the same by contract.
“(8) The plaintiff further replying to the answer of said defendant denies each and every allegation therein contained not hereinbefore admitted or denied.”
The case was tried to the court without a jury, and there was a judgment in favor of plaintiff for $1,299.25. Defendant has appealed.
The record contains evidence tending to prove: The foundation for the nave and the chancel was constructed under separate contracts according to plans prepared by the architect first consulted, but the building committee was unable to procure from him plans for the superstructure. Another architect was employed for that purpose and prepared the plans used for the superstructure of the entire building, including the nave with tower and the chancel, which were constructed together under his supervision. Different parts of the work were let to different contractors. One-fourth of the cost of the 82 feet of edifice with the tower, as described in the subscription, was shown by estimates of contractors and builders. There was also proof tending to show facts estopping defendant from asserting nonliability on account of changes and of the construction of all instead of a part of the church edifice.
It is first argued that the judgment should be reversed because the allegations of the petition are not sustained by the evidence. In an abbreviated form some of the propositions discussed by defendant under this head are: Plaintiff was only entitled to recover, if at all, upon the contract pleaded in the petition, and there is no evidence that the building committee complied therewith. It was not shown that the nave with tower — the part of the building to which defendant’s subscription applied — was built according to the terms of the contract. On the contrary, the proofs show that a church 132 feet long, includ
It is further contended that it was the purpose of the vestry, as shown by the minutes of its meeting April 11, 1907, to first erect the nave and tower; that defendant gave his subscription with that understanding, and that the erection of the entire building at one time under one plan of construction, including the separate part to which alone he agreed to contribute, was a departure from the contract, which released him from liability. It is apparent from the subscription, from the minutes and from other evidence that the vestry did not limit itself to any particular time for the construction of the chancel. The testimony indicates that, after defendant entered into his obligation, an incident arose which encouraged the vestry to undertake the building of the entire edifice at one time. To the construction of the chancel alone the sum of $5,000 Avas contributed from an unexpected source. There Avas nothing in the terms of defendant’s subscrip
The manner in which plaintiff was permitted to prove “the cost of the 82 feet of church edifice with tower” is also challenged as erroneous. The trial court admitted testimony of builders and contractors to show the cost of the separate items comprising the total cost of the entire structure and to show the proportion and amount attributable to that part of the building, one-fourth of the cost of which defendant agreed to pay. ' It has already been held that defendant is liable on his subscription. The amount of such liability could only be ascertained by some method of estimating the cost of the nave with tower, since that part of the edifice was not separately constructed. There is proof tending to show that a separate construction of the nave as contemplated by defendant would have cost more than the amount estimated by plaintiff’s witnesses. The method approved • by the trial court in estimating the cost of construction is one frequently employed, and seems, under the circumstances, to . be fair and proper, and one of which defendant has no just ground to complain. Lambert v. Sanford, 55 Conn. 437.
It is also insisted that in any event the recovery was excessive, but this question was not presented to the trial court by the motion for a new trial, and for that reason will not be considered on its merits here. Hammond v. Edwards, 56 Neb. 631.
No valid defense was established, and no prejudicial error has been found in the record.
Affirmed.