Martin v. Whitman County

The opinion of the court was delivered by Stiles, J. Appellant brought suit against Whitman county upon a contract made with him by the board of county commissioners by an order spread upon its minutes in the following words: “It is hereby ordered that C. Q. Martin make a tax list of all taxes delinquent in Whitman county, and that he receive therefor five per cent, on the total amount of said tax list. That said five per cent, is to be paid out of the tax due Whitman county on said tax list as it is collected.” The supreme court of the territory in Martin v. Whitman County, 20 Pac. Rep. 599, held the making of this contract to have been within the power of the board of commissioners. This, therefore, is the law of the case. See O. R. & N. Co. v. Dacres, ante, p. 195. Thecause was tried upon its merits, in accordance with that opinion, upon a complaint alleging the list to have been, made by plaintiff, showing $68,576.25 delinquent taxes due the county, and the sum of $2,000 thereof actually collected. The truth of these allegations, and others showing the refusal of the board to allow more than five per cent, of the money collected, was admitted. The answer of the defendant alleged that the list prepared by the plaintiff was so carelessly and negligently prepared that it wras useless for the purpose for which it was designed, viz.: the collection of the taxes delinquent; but no proof seems to have been offered to sustain these averments, and the case was submitted to the.jury, after a refusal of the court to direct a verdict for the plaintiff for $2,000, and upon the court’s direction to find for plaintiff for $100 and costs. The request to charge necessarily involved a construction of the terms of the contract by the court on the question [256] whether the services of the plaintiff were to be compensated by the payment of an amount equal to five per cent, of the total amount of delinquent taxes discovered and listed by him, out of the first money derived from that source, or five per cent, of the money collected without regard to the gross delinquency. The court, as has been observed, instructed that only five per cent, of the amount collected had been stipulated for, and plaintiff appealed. We are well satisfied that the construction given to the contract was wrong. Indeed, as we view it, it was not subject to construction at all, but was plainly such an agreement as the plaintiff contends it to be. Upon a retrial of the case, therefore, unless the defendant can show the truth of the matters alleged in its answer, judgment must be entered for plaintiff for the amount collected up to five per cent, of $68,576.25. Upon so plain a case it would be within the power, and it would ordinarily be the inclination of this court, without ordering a new trial, to amend the judgment of the court below; but in the case at bar the contract made, in view of the short time occupied by the plaintiff in the performance of the work (barely three months), seems to have been so recklessly improvident and unbusinesslike a transaction on the part of the commissioners, that we think that justice requires that the county have an opportunity to avail itself of the alleged worthlessness of plaintiff's work, as shown in its answer. The judgment is reversed, and a new trial ordered in accordance herewith. Akdebs, O. J., and Scott,' J., concur. Dunbar, J., not sitting.