164 Ind. 589 | Ind. | 1905
Lead Opinion
This was a suit brought by appellee against appellant upon a contract alleged to have been made by appellant on the one part, and Eleener & Hunter, on the other, which contract was afterwards assigned to appellee.
It is alleged, in substance, in the complaint, that for and during thirty years prior to 1892 there were many errors in the records, books, vouchers and settlement sheets in the office of the auditor of said county, and in the records of the county treasurer and sheriff, and also in the various records of the Howard Circuit Court, and many other courts in other counties in said State, and in the semiannual settlement sheets filed with the Auditor of State, and that, on account of such errors, mistakes and omissions, there were large amounts of money justly due and owing to Howard county; that the existence of such claims, and each item thereof, in favor of said county, and the facts in relation thereto, were then unknown to the board of commissioners and said Fleener & Hunter; that the existence of said claims, and each item thereof, and the facts in relation thereto, could only be ascertained by long, laborious and careful search of experts; that it was not then known whether such search would result in the finding of any such mistakes or claims; that said investigation and work required skill, and expert accountants in that special line of work, and that no officer or person connected with said county government possessed such skill and ability,, and that said Eleener & Hunter were expert accountants, and had the necessary ability and skill to perform said service; that, under such circumstances, on June 6, 1892, at the regular June session of said' board of commissioners, said Eleener & Hunter made a written proposition to said board of commissioners in the words and figures following: “To the honorable the board of commissioners of Howard county. Gentlemen: We will examine the books, vouchers and settlement sheets in the various offices of the county and ascertain whether or not there is any money due the county
It is further alleged that the board of commissioners on June 14, 1892, at said June session, duly found and entered of record as part of its orders that an indispensable public necessity existed for the employment of expert accountants to examine said books, vouchers and settlements in the various offices of Howard county, Indiana, and to collect any moneys due the county, and for the making of said contract with said Eleener & Hunter to render the services so contemplated by said proposition so made on the 6th day of June, 1892, and then and there duly accepted said proposition, and employed said Eleener & Hunter to perform said services, and that the action of said board of
It is further alleged that said Eleener & Hunter, under and pursuant to said contract, proceeded to and did, at great expense to themselves, make a thorough and complete exam
It is further alleged that as a result of the investigation and examination of the records and books of the finances .of Howard county, Indiana, also of the records, books and papers of other counties in said State, including the counties of Madison, Miami, Hamilton, Grant, Carroll and Huntington, by said Fleener & Hunter, they found that there was due and owing to the county of Howard, on account of changes of venue from different counties, a sum in the aggregate amounting to $1,489.60, which amount was duly collected by said Fleener & Hunter from the said counties and paid into the treasury of said Howard county,
It is further alleged that the said services were so rendered and performed hy said Eleener & Hunter for the board of commissioners pursuant to, in accordance with, and as a part of, said contract aforesaid, and that all of said services and collections grew out of the same transaction and agreement, and that said Fleener & Hunter fully and duly performed all the terms and conditions of said contract and employment on the part of said Eleener & Hunter to be performed, and that, under the terms and conditions of said contract, and hy reason of said services and the collections made hy said Eleener & Hunter, and caused to he made by them, and turned into the county treasury and retained by the county without cost to the county, there became due and owing to said Eleener & Hunter from said county the sum of $2,021.81, with interest thereon, and that, under the circumstances existing at the time the contract was made, the said contract, when made, was fair and reasonable.
It is further alleged that under and pursuant to said order of said board of commissioners, appellee, as auditor of said county, in good faith drew a warrant in favor of said Eleener & Hunter for $1,211.09, being a part of the amount to which said Eleener & Hunter were entitled, and that thereafter appellee, for the reason that no claim therefor had been first filed with the auditor of said county and presented to the hoard.of commissioners for allowance, as required by the statute, on demand of said county, repaid
Bills of particulars of all amounts collected from the State and the several counties are filed with the complaint as exhibits. The complaint was answered in nine paragraphs. The second, third, fourth and ninth were carried out on demurrer. Thq second and ninth are in all material respects the same, and allege, in substai.ce, that Fleener & Hunter and the board entered into contractual relations as set out in the complaint. The proposition was presented and accepted in writing on the 6th day of June, 1892. Said proposition was marked “filed” by the appellee as auditor, and placed on file among the papers, of the county, but no record thereof was made as of that day. The records of the board appear on their face substantially as set out in the complaint, but it'is averred that on and prior to the 6th day of June, 1892, and until after November, 1893, the appellee was auditor of Howard county, and acted as such; that he and Fleener & Hunter had formed a conspiracy to obtain from the board the contract sued upon, and so to use it that a large amount of money would be obtained from the State and surrounding counties. They represented to the board that there were large sums due the county from the various sources mentioned, and it would require experts to make the search and collect the money. All of said statements were false and known to be false, but the board relied upon them, and the written accej)tance was purposely drawn by Fleener & Hunter and appellee so that the auditor could draw warrants for fifty per cent, of the amounts secured without filing any claim for services before the board as required by law. Warrants therefor were drawn contrary
The third paragraph pleads the' same facts as a partial answer addressed to exhibit A, being the amounts collected as change of venue costs due Howard county. The fourth likewise pleaded the same matter as a partial answer addressed to exhibit B, being the amount collected from the State as refunded taxes. The first paragraph was a general denial; the fifth, non est factum; sixth, payment; seventh, partial payment; and eighth, no consideration. Reply in general denial to the sixth, seventh and eighth paragraphs. Error is assigned on the sustaining of the demurrer to the second, third, fourth and ninth paragraphs of answer, and the overruling of appellant’s motion for a new trial. On a former appeal of this case the sufficiency of the complaint was determined. Garrigus v. Board, etc. (1901), 157 Ind. 103.
Was it error to sustain the appellee’s separate demurrer to all or either the second, third, fourth or ninth paragraphs of answer ? The theory of the pleader in these paragraphs
1. “Fraud,” says a distinguished author, “in its ordinary application to cases of contracts, includes any trick or artifice employed by one person to induce another to fall into or detain him in an error, so that he may make an agreement contrary to his interest.” 1 Bouvier’s Law Diet. (Rawle’s Rev.), 844. It is a rule of universal application that, to constitute actionable fraud, it must appear that the complaining party has been in some way damaged or prejudiced. Franklin Ins. Co. v. Humphrey (1879), 65 Ind. 549, 560, 32 Am. Rep. 78; Bish v. Van Cannon (1884), 94 Ind. 263, 266; Srader v. Srader (1898), 151 Ind. 339, 342; 14 Am. and Eng. Ency. Law (2d ed.), 137. Acts of misrepresentation and deception, which involve only a matter of good morals, are questions for the conscience, and courts will take cognizance only of such delinquencies and wrongs- when it is shown that another has been induced by them to do some act to his injury.
2. Another elementary rule is that a pleading relying upon fraud and deception will be judged, not by the epithets used, nor the general characterization of acts, but by the facts that are specially set forth as constituting the wrong. Curry v. Keyser (1868), 30 Ind, 214; Joest v. Williams
3. Courts presume that all men, in dealing with their fellows, act with probity and honesty, and will not undertake to sift the testimony in search of fraud, unless the complaining party, in his pleading, has directed attention to particular facts, or acts of wrongdoing.
4. Does it appear that Howard county, or any other corporation or person, was misled and injured or in any way prejudiced by the things alleged in the answers to have been done by appellee and Eleener & Hunter? It is admitted by appellant that the contract was entered into in the terms and manner set forth in the complaint, and we must consider these answers thereto with reference to the averments they seek to avoid. It is averred in the complaint that Eleener & Hunter represented to the board that there was a large amount of money due Howard county from the State and surrounding counties on account of the refunding of taxes and change of venue costs, which had resulted from errors and omissions in collections and settlements, the ascertainment of the true amount of which would require the services of ,an expert. The board being induced by such representations, and finding that an indispensable necessity existed therefor, employed Eleener & Hunter “to make said examination and collect any money due the county.” The sole purpose of the employment, as alleged, was to discover and collect money “due the county,” and, whether or not Eleener & Hunter succeeded in making good their representations, the county was to be at no expense, and subjected to no liability, except fifty per cent, of the net amount brought into the treasury by Eleener & Hunter. The answers, however, allege that the representations of Eleener & Hunter were false; that neither the State nor
Appellant endeavors to sustain these answers by the doctrine announced in Overshiner v. Wisehart (1877), 59 Ind. 135, Root v. Stevenson (1865), 24 Ind. 115, Brown v. First Nat. Bank (1894), 137 Ind. 655, 24 L. R. A. 206, and others of that class, viz., that where parties have made
Did the court err in directing the jury to return a verdict for the plaintiff? Under the pleas of general denial and non est factum, it was incumbent upon the appellee to prove his complaint, and that the contract sued on had been executed according to law. Appellant insists that the evidence discloses that the contract was entered into in violation of §7853 Burns 1901, §5766 R. S. 1881, which provides that, except in cases of indispensable public necessity, to be found and entered of record as a part of its orders, boards of commissioners shall make no allowance not specifically required by law, nor employ any p.erson to perform any duty required by law of an officer, or for any duty to be paid for by commission or percentage.
5. It is claimed that it appears from the evidence that the contract under which the parties acted was entered into on June 6, 1892, eight days before the finding and entering of record of the existence of a public necessity therefor, and that the contract was therefore absolutely void for want of power in the commissioners to make it. By reference to an earlier page of this opinion the proceedings of the board will be found, set out in the order in which they appear of record, to wit: On June 6, 1892, Eleener & Hunter presented their written proposal to examine the books, etc., and on the same day the board accepted the proposition, and ordered it made a matter of record, though, as a matter of fact, it was not spread of record on that day. The acceptance, in general
It is evident that the board did not intend or understand that it had done anything more on June 6 than to agree to general terms as a basis for a special contract of employment after the details had been worked out and an entry prepared. This is manifest from the references to the pending proposal on file, and expressions used in its order and entry of June 14. “It is therefore ordered,” recites the record of that date, “that Fleener & Hunter be, and they are hereby, employed,” etc. While §7853, supra, does require, as a condition precedent to the power to make a contract within its provisions, the finding by the board, and entry among its minutes, of the existence of a public necessity therefor, yet it does not require, after the necessity has •been found and spread of record, that a contract made in pursuance thereof shall be agreed to and recorded before the power of the board to make it arises. The statute is satisfied if the record is made within the term, and before the execution of the contract is entered upon. Here the record of the proposal appears among the proceedings' of the board under date of June 15, reference to the page on which it appears being made in the record of the contract of June 14, as follows: “See p. 406.” The entry of June 14, considered in connection with the proposal of Eleener & Hunter referred to, makes a complete contract, and the recording of the proposal on the following day constituted a full and complete record of the contract; and, being con
As a further assault upon the execution of the contract, appellant endeavors to show that the record of the original proposal, which appears to have been entered on June 15, 1902, was not in fact made until long after the services of Eleener & Hunter had been fully performed. The theory being that it was inserted by the appellee, as auditor, in the autumn of 1893, by writing it upon an unfilled page, over the signatures of the commissioners, signed at the bottom, under date of June 15, 1892. The trial was had in July, 1902. The two living commissioners who signed the record, and the auditor, and deputy auditor who wrote it, testified that the commissioners occasionally signed at the bottom of a page not fully occupied; but each was confident, though not absolutely certain, after the lapse of ten years, that the page when signed on June 15, 1892, was in the same condition in which it appeared at the trial.
As against these four witnesses, á witness who became a member of the board of commissioners six months after June 15, 1892, testified that after going to the board he examined the minutes of the June term, 1892, to see what was done in the Eleener & Hunter matter, and did not observe a copy of the original proposal; that on one or more occasions persons came into the auditor’s office, and, in the presence of'the two commissioners, the auditor and deputy auditor, inquired for the proposal, at a time when it was off the files or misplaced, and neither the commissioners, nor auditor, nor his deputy, gave notice that it was recorded; that he never knew it was recorded until Hunter informed him in the autumn of 1893, when he went to the record and found it as it now appears, and that when he first saw it the color of the ink indicated that the record had been recently made. Under the evidence, there was nothing in the appearance of the record page — in crowding or distribution of the matter, as to different pens, or hand
6. But the initial proposal of Eleener & Hunter was an essential part of the contract entered into June 14, and its
7. The majority of the court are of the opinion that, notwithstanding the testimony of appellant’s witness is indefinite, and therefore unsatisfactory, it amounted to some evidence from a competent witness, upon the weight of which, and credibility of the witness, appellant had the right to demand the judgment of tire jury. The majority are of the opinion that the question falls within the rule announced in Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 388, Messick v. Midland R. Co. (1891), 128 Ind. 81, 85, Diezi v. Hammond Co. (1901), 156 Ind. 583, 588, and many others of the same class, and that taking the case from the jury was reversible error.
The judgment is therefore reversed, with instructions to grant appellant a new trial.
Rehearing
On Petition for Rehearing.
Appellee has petitioned for a rehearing in this appeal on the grounds that the court erred (1) in holding that there was evidence in the case on a material issue, on the weight and credibility of which appellant had the right to demand the judgment of the jury; (2) in holding that it was essential to show that the original proposition or contract which appears to have been entered of record by the board of commissioners on June 15, 1902, was in fact spread of record at that time; (3) in holding that the provisions of §7853 Burns 1901, §5766 R. S. 1881, are applicable and controlling; (4) in holding that the contract entered into on June 6, 1902, should have been entered of record before the parties proceeded to act thereon.
8. In support of their contention counsel for appellee refer us to the decision of this court in Weatherhogg v. Board, etc. (1902), 158 Ind. 14, to show that by the holding therein §7853, supra, is not apphcable to cases of the char
In the former appeal of this cause (Garrigus v. Board, etc. [1901], 157 Ind. 103) this court said: “We hold that §39, supra [§7853, supra], is valid, and that it was in force when the agreement with Fleener & Hunter was made; but even if we are in error in this, it will be found that this court has accorded to the county board very full powers to enter into contracts for the benefit of the property of the county, and that these powers were amply sufficient for the purposes of the agreement with Fleener & Hunter. §5745
By the provisions of §7853, supra, it is evident that the legislature intended to prohibit boards of commissioners from doing three particular things, unless they substantially complied with the requirements of said section: (1) Erom making any allowance “not specifically required by law to any county auditor, clerk, sheriff, assessor or treasurer, either directly or indirectly, or to any clerk, deputy, bailiff, or any employe of such officer.” (2) Erom employing “any person to perform any duty required by law of any officer.” By the words “any duty required by law- of any officer” the legislature manifestly intended such current duties exacted by law of an incumbent officer, and not neglected duties which should have been performed by his predecessor in office, for, in the absence of any statutory requirement, it is not the duty of an incumbent official to discharge duties which devolved upon his predecessor. Garrigus v. Board, etc., supra. (3) Erom employing any person to perform any duty or service to be paid by a commission or a percentage. The section in question closes with the following provisions: “If it be found necessary, and so entered of record, to employ any person to render any service as contemplated in this section, as a public necessity, the contract for such employment shall be spread of record in said court, and, for such services rendered, the claimant shall file his account in said court ten days before the beginning of the term, and any taxpayer shall have the right to contest the claim.”
In Weatherhogg v. Board, etc., supra, this court in construing the prohibition of §7853, supra, against the board of commissioners entering into contracts for the performance of services to be paid by commission or percentage, held that it was only applicable to employments which per-
It will be observed that by the contract between the Board and Fleener & Hunter, the latter, for their services in making an examination of the public records, settlement sheets, vouchers, etc., in the various offices of the county for the purpose of ascertaining whether any money was due to the latter, were to be paid a percentage of fifty per cent.; or, in other words, one-half of the amount of money which they might collect for the county. It is certainly evident that under the circumstances the case at bar falls clearly within the prohibition of the statute against commission and percentage contracts. Therefore, in order to bind the county, the board in making the contract was at least required substantially to comply with the provisions of the statute.
The case of Weatherhogg v. Board, etc., supra, under the facts, is clearly distinguishable from the case now under review. In that case the services to be rendered under the contract therein between the board and one Grindle, an architect, were the preparation by the latter of plans and specifications for the building of a court-house, and superintending the construction thereof. It is true that the compensation to be paid for the services rendered by such architect was a certain fixed percentage of the cost of the courthouse ; but it was held in that appeal, and properly so, that such services did not come within the meaning of the statute, and hence were not subject to its prohibition.
We are constrained to hold that, by reason of the percentage which the board in this case agreed to pay Fleener & Hunter for their stipulated services, the case falls clearly and fully within the inhibition of the statute, and the board
9. It is true that the evidence in controversy may, in the main, be said to be of a negative character, and possibly the learned trial judge may have considered it of such little weight that it did not tend to rebut the evidence given by the plaintiff, and that therefore he was justified in directing a verdict. But the rule that positive testimony is of greater weight than negative can not be'permitted to conflict with the general rule that the weight of negative as well as that of positive testimony must be submitted to the decision of the jury. 3 Jones, Evidence, §901; 1 Wharton, Evidence (3d ed.), §415; Starkie, Evidence (8th Am. ed.), 762, 763,
After a further consideration we are satisfied that the holding at the former hearing that the trial court erred in directing a verdict for plaintiff was correct. The petition for rehearing is, therefore, overruled.