84 Neb. 375 | Neb. | 1909
This action was brought in the district court for Douglas county to recover the reasonable value of the use of the plaintiff’s asphalt plant in repairing the defendant’s streets. The plaintiff had judgment, and the defendant has appealed.
It appears that in September, 1903, the streets of Omaha were in such a condition as to render their use unsafe and dangerous and a continuing menace to the traveling public; that there was no official newspaper in the city at that time in which notices for bids could be published as a basis for contracts for such work, and therefore no contract for that purpose could be lawfully entered into within a reasonable time for making such necessary repairs. In view of the situation, the city authorities determined to repair its streets by purchasing materials,
In the case of the Lincoln Land Co. v. Village of Grant, 57 Neb. 70, it appeared that the village ordinance providing for the rental of water hydrants was void. It further appeared that under the provisions of the ordinance the plaintiff, the Lincoln Land Company, had furnished 15 hydrants for the use of the village, and had thus supplied water for its necessary use. The village refused to pay, and an action was brought to recover the reasonable
We think the case at bar should be ruled by that decision, for it cannot be said that the city of Omaha had no power to enter into a contract to repair its streets. On the other hand, it certainly possessed such power, and it was its duty to exercise it. It appears, however, that it was impossible for the city at the time the repairs in question were made to comply strictly with the provisions of its charter by advertising for bids and contracting for the work with the lowest bidder, and therefore it may be conceded that the power which it possessed was irregularly and illegally executed, and that the contract which the city attempted to make with the plaintiff was void; but, having the power and being charged with the duty to properly repair its streets, the irregular exercise of such power cannot defeat a recovery for the necessary expenses incurred by the city in making such repairs. It follows that the defendant is liable in this action for the reasonable rental value of the plaintiff’s asphalt plant.
This disposes of the main question, which is the plaintiff’s right to recover. We come now to consider the amount of such recovery. We have carefully read the
Finding no error in the record, the judgment of the district court is
Affirmed.