Holmvig v. Dakota County

Fawcett, J.

Tbis is an action to recover for services and expenses as engineer for defendant, in the survey, location and establishment of a drainage improvement in Dakota county. Upon a trial to the court without the intervention of a jury, there was a judgment for plaintiff for the amount of his claim, and defendant appeals.

. One contention made by defendant is that it was not liable in any event for the services performed by plaintiff, but that he must look to the petitioners for the ditch improvement for his pay. This point has been decided adversely to defendant’s contention. State v. Ross, 82 Neb. 414.

That the board of commissioners had authority to act is clear. Section 5500, Ann. St. 1903. That it had authority to employ plaintiff as its engineer is also clear. Section 5506. That plaintiff performed the services embraced within the itemized claim introduced in evidence is not disputed; but it is urged that a portion of the service was performed and expenses incurred prior to his employment and appointment by the board, and a portion after the board had rescinded its former action and denied the prayer of the petitioners for the ditch. The record of the proceedings of the board of commissioners shows that plaintiff was formally appointed as engineer December 9, 1905. Items aggregating $66.15 are for services and expenses prior to that date. Plaintiff testifies that such services were rendered and expenses incurred at the oral instance and request of two of the commissioners. It also appears that the other commissioner knew that plaintiff was acting under such oral employment, and it was known by all the members of the board at the time of the appointment of plaintiff, on December 9, that the services already performed would be used by him as a part of his general employment and be included in his report, and that the board would thereby obtain the benefit of the services already rendered. Such being the case, we think his official employment, December 9, should be held to relate back to May 5, the date of his oral employment and commencement of his work. It follows that defendant’s contention that individual commissioners could not, under the circumstances in this case, orally hind the county cannot be sustained.

On March 2, 1907, the resolution adopted in 1905, es- ■ tablishing the ditch, was rescinded by the board of commissioners, and upon a reconsideration of the case at that time the prayer of the petitioners for the ditch Avas denied. It is conceded that no official notice of this action by the board was ever given plaintiff. The county-clerk testifies that about a week or ten days subsequent to such action he read the resolution, adopted by the board, to plaintiff. This, plaintiff positively denies. The eAddence upon this point being, therefore, squarely conflicting, and this being an action at law, we cannot disturb the finding and judgment of the trial court. If plaintiff Avas not notified of the abrogation by the board of its resolution of 1905, under which he was working, the court did not err in allowing his claim for services and expenses subsequent to the date of such abrogation.

Affirmed.