107 Neb. 784 | Neb. | 1922
Plaintiff brought this action against the village of Naponee and four individuals, who were, in 1916, trustees of said village, to recover damages for failure and neglect of the village board to exact a bond from one Ward, to whom it had awarded a contract for the construction of a foot-bridge in said village. To the petition a general demurrer was interposed and sustained. Plaintiff refused to further plead and judgment of dismissal was entered. Plaintiff appealed.
We are required to determine whether the petition states a cause of action. After the usual formal allegations as to the corporate character of plaintiff and defendant village, and official character of the other defendants, there are allegations which may be summarized as folloAvs: September 1, 1916, defendants entered into a contract Avith Harvey T. Ward for the construction of a foot-bridge in and for the village of- Naponee; that the contract required Ward to furnish and pay for all material necessary for the construction of the bridge; that it Avas the duty of defendants to exact from said
Section 3810, Rev. St. 1913, imposes on a village board the duty, before entering into a contract for the construction of a bridge, to take from the contractor a bond, with sureties in a sum not less than the contract price, conditioned for the payment of material which is actually used in performing the contract. Such bond shall be filed with, approved and kept by, the board, and may be sued on by any person entitled to the benefit of its protection.
Plaintiff insists that the failure of the village board to take the bond required by said section 3810 renders the village and members of the village board, as individuals, liable to the plaintiff in this action. Whether the failure of the village board to perform the duty imposed by the statute renders them personally liable in an action by a materialman is very doubtful, and is a question on Avhich the authorities are in hopeless conflict.
In a number of states there are statutes similar to the one in this state, but with other provisions that impose a statutory liability upon officers or the municipality for a failure to perform the duty. In this state there is no personal liability imposed by the statute, and, if there be any, it arises from the application of the principles of the common law. It may well be doubted, where the statute imposes no liability, and the officers serve without compensation, and are not required to give official bonds, and where their duties are generally of a public nature, whether they are personally liable for a neglect of official duty. However, we find it unnecessary to determine that question in this case. If any liability did exist, either on the part of the village or of the persons who were trustees, it could arise only where the materialman had furnished material for the construction of the bridge, relying upon a bond for his protection, and where he had suffered damage by failure of the contractor to pay for the material furnished. The statute required the bond to be filed, and plaintiff knew, or by exercise of ordinary diligence could have known, that no .bond had been taken and filed. . Plaintiff was chargeable with notice that no bond had been taken, and had no right to impose liability on the village or the members of the village board. When it knew, or could by the exercise of ordinary care have known, that no bond was given, and voluntarily furnished .the material, it will be presumed that it furnished the material solely upon the credit of the contractor. Blanchard v. Burns, supra. Plaintiff could not be damaged unless there was a failure
The judgment of the district court is
Affirmed.