City of Enterprise v. Fowler

Opinion by Simpson, C.: The error complained of is the rendition of a judgment against the city for the costs of this action, amounting to $213. An action was instituted by the defendant in error against the city of Enterprise, a city of the third class, to recover for his services as surveyor and civil engineer, in establishing a system of grades for streets, buildings and other purposes. The case was tried by a jury, at the January term, 1885, of the district court of Dickinson county, and a verdict was returned and a judgment rendered- against the city for $18 and costs. It is now insisted that the judgment for costs was erroneous because it was not shown that the claim had been presented to the city council “in writing, with a full account of the items, and verified by the oath of the claimant or his agent that the same is correct, reasonable and just,” as is required by § 48 of chapter 19a, Comp. Laws of 1885. There is an allegation in the bill of particulars filed by the defendant in error, that “he did personally present to the common council of said city, defendant, at one of its regular sessions, a statement or demand of his claim, in the sum of $100, which said council refused to allow and pay.” At the trial the defendant in error produced and had read from the record [416] of the proceedings of the mayor and councilmen of said city of Enterprise, had on the 8th day of September, 1880, the following: “ Committee on claims report that the bill of James Fowler, county surveyor, be not allowed. Moved that the report of the committee be tabled. Ayes: Hoffman, Upshon, Dees, Wright, (4;) absent, 1.” And the following entry on the 5th day of October, 1880: “On motion, the claim of James Fowler, surveyor, taken up. On motion of C. Hoffman, a claim of $10 be allowed. Ayes: Dees, Wright, Upshon, and Hoffman, (4;) absent, 1.” The defendant in error testified: “I presented a bill for $100; they refused to pay the bill, and offered me *$10. I do not know whether it was a regular meeting or not.” To all this evidence there were objections noted, and there was also an objection to the introduction of any evidence, because the bill of particulars did not state facts sufficient to constitute a cause of action, because, we suppose, it was not specifically alleged that the claim was presented in writing. This is too technical; there was an allegation in the pleading that justified the introduction of the.evidence. (City of Atchison v. King, 9 Kas. 560; City of Abilene v. Hendricks, 36 id. 196.) And it sufficiently appears that the claim was in writing. It was presented; referred to a committee; reported back from the committee; and then called up and acted upon. The irresistible inference from these recitations in the record is, that the claim was presented in writing. The city council voted to pay a part of the demand, and the defendant in error refused to accept it, brought his suit, and recovered a greater amount than the city offered to pay. In the absence of any showing to the contrary, the presumption is that the claim was presented as is required by the statute. The plaintiff in error, whose city clerk was the custodian of its records and of the claim presented to the council, could easily have shown that the claim was not in writing if such was the fact. It is true that the burden was on the defendant in error to show that he had duly presented his claim to the city council. We think [417] he did so as against all merely technical objections. He had made a prima facie case that could be overcome only by a positive showing that the claim was not presented in the exact form required. We think substantial justice has been done, and recommend the affirmance of the judgment. By the Court: It is so ordered. All the Justices concurring.