154 Ind. 138 | Ind. | 1900
This was an action by appellants against the rector, wardens, and vestrymen of St. John’s Episcopal Church, of Elkhart, Indiana, by the name of St. John’s Episcopal Church, of Elkhart, Indiana, upon a building contract, and to enforce a mechanic’s lien. Divers subcontractors and material men, who claimed liens, were joined as defendants. The complaint was in a single paragraph. The principal defendant, St. John’s Episcopal Church, filed an answer in four paragraphs, the first being a general denial, the second a plea of payment, the third a counterclaim for liquidated damages, under the contract, for failure to complete the building within the time limited, and the fourth a further counterclaim for special damages by reason of certain breaches of the contract by plaintiffs other than by delay. Replies in denial to second, third, and fourth paragraphs. The remaining defendants, separately, filed answers
At the request of the parties, the court made a special finding of facts with its conclusions of law thereon, to each of which conclusions appellants excepted. Motions for a new trial, and for judgment on the special finding, were made by appellants, and overruled. Judgment that appellants take nothing by their suit, that the several subcontractors and material men recover from appellants the amounts of their respective claims, with their attorneys’ fees, and that their liens be enforced against the church property. It was further adjudged that the defendant, the rector, wardens, and vestrymen of St. John’s Episcopal Church, etc., recover from the appellants $1,972.32, subject to credits for any amount which the plaintiffs might pay thereafter to the said subcontractors, and material men on account of their judgments.
Error is assigned upon the several conclusions of law, and upon the refusal of the court to grant a new trial.
Appellees make the point that the evidence is not properly in the record. This objection rests upon the form of the certificate of the trial judge to the general bill of exceptions, and, in our opinion, the objection is well taken. The certificate is in these words: “And now, on this 24th day of February, 1898, the said plaintiff presents his bill of exceptions, containing all of the evidence offered, introduced, and given in said cause io the point vjhere the clefendant rested its main case, and all objections and exceptions reserved during the trial of said cause io the point where the defendant rested its main case. Said bill of exceptions contains all of the evidence in said cause to the point where the defendant rested
It does not appear‘from this certificate, or elsewhere, that the evidence set out in the bill of exceptions was all the evidence given in the cause. On the contrary,, the unavoidable inference from the language of the certificate is that there was other evidence which is not included in the bill. There were several defendants, and it is impossible to determine just what is meant by the certificate. Other evidence may have been introduced by the plaintiffs below, and by other defendants, after the defendant, the church corporation, had rested its main case, whatever that may be, which fully sustained all the findings of facts. We are, tlierefore, constrained to hold that the evidence is not in the record, and, consequently, that no question dependent upon it is before us. Harris v. Cleveland, etc., R. Co., 153 Ind. 475. This ruling takes out of the record all of the supposed errors except such as are assigned upon the conclusions of law.
The special finding is, in substance, as follows: The rector, wardens, and vestrymen of St. John’s Episcopal Church, of Elkhart, Indiana, as a corporation, were, on June 4, 1895, the owners of the premises described in the complaint; on said day, a contract, in writing, as alleged in the complaint, was entered into between the plaintiffs and the defendant, the rector, wardens, vestrymen, etc., wheréby the plaintiffs were to furnish all the materials and labor, and were to erect on the premises described a church edifice, for which the church corporation was to pay the plaintiffs $13,850; the plaintiffs proceeded with the said work, and completed the same, agreeably to the contract, except as otherwise set forth in the special finding. After the contract had been entered into, by the mutual agreement of the parties and for the accommodation of the plaintiffs, the church
As conclusions of law upon the foregoing finding of facts, the court stated in substance: (1) That the subcontractors and lienholders were entitled to recover judgment. (2) That the plaintiffs were entitled to recover on their contract, and for extra work, $13,907, together with their attorney’s fee of $500, if they are entitled to any foreclosure of their lien, making in all $14,407, less the payments and deductions afterwards set forth in the conclusions of law. (3) That plaintiffs are not entitled to recover $100 for ten inches of Berea stone put in by them. (4) That the defendant church is entitled to credits and deductions to the amount of $11,204.45. (5) That the defendant church is entitled to a credit of $50 per day for sixty days’ time, to wit, from April 5, 1896, to June 5, 1896, during which period said church building remained uncompleted, and that the provision to this effect in the contract is for liquidated damages. In the 6th, 7th, and 8th conclusions, it is held that the subcontractors and cross-complainants are entitled to recover from the plaintiffs the following sums: Martin cfe Amidon $406.34, with $35 for their attorney’s fee; Laurer & Weiss, $181.95, with $35 for attorney’s fees; Furlong & Frush, $981.41, with $35 for attorney’s fees. It is further stated that each of these firms is entitled to a foreclosure of its lien on the church property, as described in the complaint. (9) That the amounts due the subcontractors should be deducted from the sum found due to the plaintiffs in conclusion number two. (10) That after deducting from the sum due the plaintiffs, as stated in conclusion number two, the various amounts allowed the defendant, the wardens, vestrymen, etc., as set forth, and after deducting said cross-complainants’ claims, the plaintiffs should take nothing upon their complaint, but that the defendants, the wardens, vestrymen, etc., should recover .from the plaintiffs $1,972.32,
The exception to the first conclusion of law is unavailing, for the reason that the court had expressly found that the agreement sued upon was the contract of the rector, wardens and vestrymen of St. John’s Episcopal Church, of Elk-hart, Indiana, and not the contract of the individuals who signed it on behalf of the church. We must look to the pleadings and findings of fact alone, and these fully support the conclusion as to the parties to the contract, and the capacity in which the persons affixing their signatures signed it.
The second conclusion of law is a necessary deduction from the findings of fact, and correctly states the amount the appellants should recover on their contract, and for extra work, less the payments and deductions elsewhere set forth in the other conclusions of law. The third conclusion is directly responsive to the facts found that the work done was within the contract, and not extra. The fourth conclusion is but a summary of the credits and deductions to which the church corporation is entitled, as shown by the several findings of fact. The findings, with the pleadings on which they are made, taken as the basis of this conclusion, fully sustain it.
The fifth conclusion of law is that the defendant, the church corporation, is entitled to a credit of $50 per day for the space of sixty days, from April 5, 1896, to June 5, 1896, as liquidated damages on account of the failure of the appellants to complete the work, under their contract, by April 5, 1896, and their delay until June 5, 1896, in completing it.
It appears from the finding of facts, that it was provided in the contract that appellants should finish their work, and have the church edifice ready for use by its owner, by March 1, 1896, and that in default thereof they would pay to the
We do not consider it necessary to enter into an extended examination of the authorities upon the vexed question whether the sum named in a contract is to be regarded as a mere penalty, or is to be treated as liquidated damages. We are content to adopt the rule laid down by this court in Jaqua v. Headington, 114 Ind. 309, which is this: “Where the sum named is declared to be fixed as liquidated damages, is not greatly disproportionate to the loss that may result from a breach, and the damages are not measurable by any exact pecuniary standard, the sum designated will be deemed to be stipulated damages. * * * If the sum fixed can not be recovered, then there is no exact standard by which the recovery can be measured, and the appellant will be compelled to accept * * * a price fixed by other men upon his own property, and this, too, in a case •where the parties have deliberately fixed the value and written it in their contract.” The facts found bring this case clearly vithin the rule stated in Jaqua v. Headington, supra. See, also, Martin v. Murphy 129 Ind. 464; O’Neal v. Hines, 145 Ind. 32; Brown v. Maulsby, 17 Ind. 10; Gam
The fifth conclusion of law, however, is erroneous upon another ground. All of the facts upon which it rests are found under the third paragraph of the pleadings filed by the appellee, the church corporation, which reads thus: “Third. For a third and further defense said defendants say, that, by virtue of said contract set forth in the plaintiffs’ complaint, the plaintiffs agreed to build and complete said church building on or before the 1st day of March, 1896, and that, in default thereof, the plaintiffs should pay to said St. John’s Episcopal Church the sum of $50 per day thereafter that said work shall remain unfinished, as and for liquidated damages. The defendants say that said work still remains unfinished, although more than 200 days have elapsed since said 1st day of March, 1896; that by reason of said failure of the plaintiffs to complete said building, in accordance with the provisions of said contract, on or before the 1st day of March, 1896, the defendant, the St. John’s Episcopal Church, has been damaged in the sum of $50 for each and every day said church remains uncompleted after said 1st day of March, 1896, or, $10,150. Wherefore the defendants say that said St. John’s Episcopal Church and neither of said defendants are indebted further to the plaintiffs, and they ask judgment.” The court seems to have treated this paragraph as a counterclaim, and it is made the foundation of a recovery or allowance against the appellants of $3,000. Its sufficiency was not tested by demurrer in the court below, and in this court it is not assailed by any assignment of error. This court has held in numerous cases that, if the complaint states a good cause of action, and avers facts sufficient to bar another suit for the same cause, defects and irregularities in form will be cured by a general finding or verdict, or by a special finding or verdict which finds the facts necessary to complete the cause of action thus defectively stated, provided the facts so found
The distinction between an answer and a counterclaim or set-off is ail obvious one. The purpose of an answer is to defeat the action and bar a recovery. A counterclaim or set-off, on the contrary, is a pleading by which the defendant states a cause of action in his own favor, and against the plaintiff. It does not purport to answer the complaint, or to set forth any facts which bar a recovery upon it. It has none of the properties of an answer. It neither admits nor denies the allegations of the complaint. It does not confess and avoid them. "Where a defendant succeeds upon an answer going to the whole complaint the only judgment the court can pronounce is, that the plaintiff take nothing by his complaint, that the defendant go hence thereof without day, and; by virtue of the statute, that the defendant recover his costs. If a defendant wishes to obtain affirmative relief against the plaintiff, he must state his cause of action by way of counterclaim or set-off. It is settled beyond dispute that the same pleading can not be treated both as an answer and a counterclaim. The commencement of the third paragraph of the pleading filed by the defendants in this case is in these words: “Eor a third and further defense said defendants say,” etc., and it concludes thus: “Wherefore the defendants say that said St. John’s Episcopal Church and neither of said defendants are indebted further to the plaintiffs, and they ask judgment.” The paragraph is pleaded as an answer only, and it can not be made the foundation of a judgment for damages, or other affirmative relief, in favor of the defendants, and against the plaintiffs.
The sixth, seventh, and eighth conclusions of law relate to the claims of the subcontractors, Martin & Amidon, Laurer & Weiss, and Furlong & Frush, and to their right to foreclose their respective liens. The court found that- these claims were due and owing by appellants, ascertained the amount of each, including attorneys’ fees, and found, also, that these parties, respectively, held mechanics’ liens on the church property.
Looking to the findings of fact and to the pleadings tp which they relate, as we are compelled to do, the sixth, seventh and eighth conclusions of law are, beyond doubt, correct. It is insisted that the court erred in allowing the attorneys’ fees on each of these claims, but we think the findings clearly justified the action of the court.
The ninth conclusion of law is that the amounts so due from appellants to the subcontractors, and for which the latter had established their liens upon the church property, should be deducted from the sum found to be due to the appellants in conclusion number two. This conclusion is strictly in accordance with the terms of the contract of appellants as found by the court.
The tenth conclusion states that, after deducting from the sum due the appellants, as set forth in conclusion number two, the various amounts allowed the defendant, the wardens, vestrymen, etc., as credits and deductions, the appellants should take nothing by their complaint, and that the wardens, vestrymen, etc., should recover from the appellants $1,972.32, with their costs. This conclusion rests upon the facts found under the third and fourth paragraphs of the pleading filed by the church corporation; and the exception to it, also, should have been sustained, for the reasons given concerning the fifth conclusion of law. As the
The eleventh conclusion of law is that upon payment by appellants of any or all the judgments in favor of the subcontractors, and against appellants and the church property, the appellants will be entitled to credit for the amount so paid. This conclusion is obviously right, and is for the benefit of the appellants.
The appellee, the church corporation, demurred to the complaint, its demurrer was overruled, and this decision of the court is assigned as a cross-error.
Under this assignment, it is insisted that the defendant church corporation is sued by the wrong name. No plea in abatement was filed, and the question is not properly raised by the record. A church society has a right to choose any name, and for all that appears in the pleadings the name selected by this society was “St. John’s Episcopal Ohurch, of Elkhart, Indiana”. It might have been incorporated under the name of “The Rector, "Wardens, and Vestrymen of St. John’s Episcopal Church”, etc., but it was not bound to adopt that' designation. If it was not incorporated at all, or if it was incorporated under one name, and sued in another, these errors might have been taken advantage of by proper pleadings, but they were not presented by way of plea or answer, and they can not be raised in this case by demurrer for want of facts. §§4729, 4742, 4743 Burns 1894; Richwine v. Presbyterian Church, 135 Ind. 80.
The allegation of performance of the contract by appellants was sufficient, and the inconsistency between the date at which the work was to be finished, according to the contract, and the date of its completion, as stated in the complaint, was properly disregarded. Under the averment, as
The plans and, specifications referred to in the contract were not parts of the contract in such sense’ as to require that they should be filed as exhibits. The written instrument on which the complaint was founded was the contract to construct the.church edifice, in consideration of the sum to be paid therefor. Drawings, plans, specifications, and the like, although referred to in the agreement, did not constitute the written instrument sued upon, and it was not necessary to file the originals or a copy thereof with the pleading. Continental Ins. Co. v. Kessler, 84 Ind. 310.
The contract sued upon was, evidently, the contract of the church corporation, and not the agreement of the persons signing it on behalf of that corporation. The.instrument is carelessly drawn, and is inaccurate in many particulars, but it is to be construed as a contract between the appellants and the church corporation alone.
The objection that the complaint fails to show a sufficient excuse for the failure of the appellants to obtain from the supervising architect the certificate required by the contract can not be sustained. The complaint avers that the appellants fully performed the contract on their part, excepting the condition thereof requiring them to obtain the certificate of the architect. It is alleged that, after the work was finished, they demanded the certificate, and notified the appellees of their demand, requesting them to cause the certificate to be delivered, but that the same was refused. These averments showed that the appellants were entitled to the certificate, and that it was wrongfully withheld. The facts pleaded in this connection constituted a sufficient excuse for the failure of appellants to procure the certificate.
The complaint is open to criticism in many respects, but its allegations are sufficient to withstand a demurrer.
Eor the errors of the court in its fifth and tenth conclusions of law, the judgment in favor of the wardens, vestrymen, etc., of St. John’s Episcopal Church against the appellants is reversed, and the cause is remanded for a new trial. The judgments in favor of the subcontractors, Laurer & Weiss, Martin & Amidon, and Eurlong & Frush, are affirmed. Baker, J., was absent.