115 Ind. 316 | Ind. | 1888
This suit was commenced by appellant, as plaintiff, against appellees, John F. Hill, Ewing H. Rowe and Rezin Johnson, as defendants, in the Ripley Circuit Court. Appellant’s complaint was in two paragraphs, each of which counted upon a certain writing obligatory, executed by appellees to the appellant, of which the following is a copy:
“ Know all men by these presents, that we, John F. Hill, Ewing H. Rowe and Rezin Johnson are held and firmly bound unto the board of commissioners of Ripley county, State of Indiana, in the penal sum of seven thousand dollars, for the payment of which, well and truly to be made, we bind ourselves jointly and severally, and our heirs, executors and assigns, firmly by these presents. Sealed and dated this 21st day of April, 1885.
“The condition of the above obligation is such that,
“Now, if the said JohnF. Hill shall well and truly perform said work, and in all things in compliance with said contract, and shall pay for all material and pay all debts incurred in the prosecution of said work, including board for laborers thereon, and in all things comply with said contract as to the construction and completion of said work, then this bond shall be void, else to remain in full force and effect. Witness our hands and seals this 21st day of April, 1885.”
(Signatures omitted.)
In each paragraph of its complaint appellant assigned, substantially, the same breaches of the condition of the foregoing bond, namely, that appellee Hill had failed to comply with or complete his contract within the time specified therein, and had abandoned such contract.
Answers were filed by the appellees, and appellee Hill separately filed his cross-complaint herein. The venue of the cause was changed to the court below, and the issues joined upon the complaint and cross-complaint were there tried by a jury, and a verdict was returned for the appellees upon appellant’s complaint, and for appellee Hill on his separate cross-complaint, assessing his damages by reason of the matters therein stated in the sum of $1,670. Over appellant’s motion for a new trial, the court adjudged that it take nothing by its suit, that appellees recover their costs, and that appellee Hill recover of it his damages, assessed in the sum of $1,670, and also his costs herein expended.
In this court appellant has assigned nineteen errors upon the record of this cause, and cross-errors have been assigned
As these cross-errors call in question here the sufficiency, both in form and substance, of each of the paragraphs of appellant’s complaint, and the rulings of the court below upon motions to strike out, motions to make more specific, and demurrers for the alleged want of facts, addressed by appellees to such several paragraphs of complaint, or the exhibits therewith filed, we will first consider and decide such of the questions thereby presented as appellees’ learned counsel have discussed in their exhaustive briefs of this cause.
1. In the first paragraph of its complaint the board of commissioners of Ripley county, plaintiff’and appellant herein, alleged that, on the 21st day of April, 1885, appellee Hill entered into a contract with one Calvin Carter, engineer, with the approval of appellant, for the construction and completion, under the free gravel road law of this State, of what was known as the Versailles and Dillsborough Free Gravel Road,' by grading, macadamizing, draining and gravelling such road from Versailles to the eastern boundary of Ripley county, a distance of eight miles, in sections of one mile each, beginning at Versailles and numbering east, all within such county; also, to build the abutments for a bridge over Laughrey Creek at Bushing’s Ford; and, also, to build the abutments and put on iron bridges at two certain points on Rocky-run Branch, all according to certain plans and specifications then on file in the auditor’s office of such county, which plans and specifications were made part of said contract ; that it was further agreed in such contract that said work should be completed, as specified in such plans and specifications, on or before the 1st day of November, 1885; that at the time of the execution of such contract, and as a part thereof, the appellees executed a bond to the appellant in the penal sum of $7,000, for the faithful performance of the aforesaid contract, which bond was duly accepted by appellant, and such contract was duly awarded to appellee Hill.
And appellant averred that appellee Hill had wholly failed to comply with his said contract with Calvin Carter, engineer as aforesaid, by wholly failing and refusing to complete such •contract, although often requested so to do before the commencement of this action ; that the aforesaid road, when completed according to contract, would be of the value of $14,-000 to appellant and Ripley county, upon which road appellant had paid appellee Hill, on said engineer’s estimates, the sum of $4,000; and the time having expired for the performance of such contract, appellee Hill had wholly, intentionally, fraudulently and wilfully abandoned said contract, to appellant’s damages in the sum of $7,000. Wherefore, etc.
In the .second paragraph of its complaint, appellant alleged •substantially the same facts as in its first paragraph of complaint, with only slight changes in verbiage and phraseology.
In the third paragraph of its complaint, after stating the substance of the contract between it and appellees, as the ■same was stated in the first- and second paragraphs of its complaint, appellant averred that, before the completion of such contract, appellee Hill the principal in the bond in suit, wherein the other appellees were his sureties, abandoned such contract and failed to complete the same within the time and in the manner stipulated therein; that appellant had performed on its part all the conditions of such contract, and had paid appellee Hill, on such engineer’s estimates, the sum of $4,000, and had been compelled, in order to get said work completed, to re-let the same to other parties and to obligate itself to pay such other parties the sum of $1,500 more for such work than it had agreed to pay appellee Hill therefor as aforesaid. Wherefore, etc.
Appellees’ cross-errors, which are predicated upon the overruling of their motions to strike out or reject the exhibits filed with the several paragraphs of appellant’s complaint, and their motions to make the allegations of such
The other cross-errors assigned by all the appellees, by •appellees Rowe and Johnson, and separately by appellee •Johnson, call in question the sufficiency of the facts stated by appellant, in each paragraph of its eomplaint, to constitute a cause of action, and to withstand their respective demurrers thereto for the alleged want of facts.
It is manifest, we think, from what we have already said, ■that appellant’s cause of action, as stated in each paragraph ■of its complaint herein, is primarily founded upon the written contract or agreement entered into, with its approval, by and between Calvin Carter, its engineer, and appellee John E. Hill. It was necessary, therefore, that appellant should, in each paragraph of its complaint, state sufficient facts to constitute a cause of action in its favor and against appellee Hill, by reason or on account of his non-compliance with the terms and conditions of the aforesaid contract or agreement, on his part to be kept and performed. If any one of such paragraphs failed to state a cause of action against appellee Hill, growing out of or founded upon his aforesaid contract or agreement, it is very clear, we think, that such paragraph could not and did not state sufficient facts to constitute a cause of action in appellant’s favor, and against all the appellees, upon the bond in suit executed by them as aforesaid.
In such contract or agreement appellant agreed to pay appellee Hill for his work in accordance with his bid, at the end of each thirty days, upon the estimates of said engineer, eighty-five per cent, of the amount due upon said work, etc.,
If appellant had sued appellee Hill alone to recover damages for his alleged failure to comply with the terms of such contract or agreement, without reference to the bond counted upon herein, and had not alleged generally, in its complaint in such suit, that it had performed all the conditions of such contract on its part, or had not shown by proper averment a sufficient excuse for its non-performance of such conditions,, it is certain, we think, that such complaint would have been insufficient on demurrer thereto for the want of sufficien11 facts. This rule of pleading is in harmony with the provisions of our civil code, and is approved and followed in many of our decided cases. Section 370, R. S. 1881; Home Ins. Co. v. Duke, 43 Ind. 418; Armstrong v. Rockwood, 53 Ind. 506; American Ins. Co. v. Leonard, 80 Ind. 272; Bertelson v. Bower, 81 Ind. 512; Fairbanks v. Meyers, 98 Ind. 92.
In the case in hand appellees’ learned counsel vigorously contend that the first and second paragraphs of appellant’s-complaint herein were clearly bad on their demurrers thereto for the alleged insufficiency of the facts therein, because it was not alleged generally in either of such paragraphs that appellant had performed all the conditions of the contract therein described on its part, nor was any sufficient excuse-shown in either paragraph for its non-performance of such, conditions. We are of opinion that this objection to the sufficiency of the first and second paragraphs of complaint is well taken as to each of such paragraphs, and that appellees’ demurrers thereto, for the alleged want of facts, ought to-have been sustained.
Appellees’ counsel concede in argument that the third paragraph of appellant’s complaint is not open to the objection urged by them to the first two paragraphs thereof; because, as we have seen, appellant alleged generally in such third paragraph that it had performed on its part all the conditions, of such contract.
We pass now to the consideration of such of the errors assigned by appellant as have been discussed here by its learned counsel. The first four of these alleged errors are predicated upon the overruling of appellant’s demurrers to each of the second, third, fourth and fifth paragraphs of the joint answer of all the defendants to the complain therein. The first paragraph of such answer was a general denial of the complaint herein. In the second paragraph of their joint answer, defendants alleged that, on the 21st day of April, 1885, defendant Hill entered into the contract, filed with the complaint herein, with Calvin Carter, engineer, and the board of commissioners of Ripley county, for the construction of the Versailles and Dillsborough Free Gravel Road, including the excavations, masonry and abutments for a bridge over Laughrey creek, and for bridges on Rocky-run creek and the iron bridges over such creek, complete and ready for use and travel, according to the plans, specifications and profile for such road then on file in the auditor’s office of such county, on or before the 1st day of November, 1885, for the sum of $13,616; that the engineer, Carter, with the approval of such board, agreed to pay defendant Hill for his work in accordance with his bid at the end of each thirty days, upon the estimates of such engineer, eighty-five per cent, of the amount due upon such work, and upon the full compliance with said contract', and completion of such work to the acceptance of such engineer and county board, engineer Carter, with the approval of such board, was to pay defendant Hill the full amount due him on such work, and Hill and his co-defendants as his sureties entered into the bond filed with the complaint herein.
And defendants further alleged that, within a few days of the execution of such contract and bond, defendant Hill entered upon the construction of such work according to said contract, and prosecuted the same diligently until Sep
And defendants averred that defendant Hill continued to work upon said road under such contract until the 1st day of November, 1885, employing hands and completing the work as fast as he could with the amount of money that had been furnished by the estimates of such engineer, on which
It was stipulated in the contract or agreement for the construction of the 'Versailles and Dillsborough Free Gravel Road, executed by and between the engineer, Carter, with the approval of the board of commissioners of Ripley county, and the defendant Hill, as follows :
“The said Carter, by and with the approval of said board of commissioners, agrees to pay the said John F. Hill for his work in accordance with said bid, at the end of each thirty days, upon the estimates of the said engineer, eighty-five per cent, of the amount due upon, said work; and upon the full compliance with this -contract, and completion of said work to the acceptance of the said engineer and the board of commissioners of said county, the said Carter, with the approval of said board of commissioners, is to pay to the said John F. Hill the full amount due him upon said work, as per this agreement.”
In the second paragraph of defendants’ joint answer herein, the substance of which we have given, they have alleged specifically and at length the continuous failure of plaintiff and engineer Carter, “at the end of each thirty days” during the continuance of the contract sued upon, to give defendant Hill full or correct estimates of the amount of work done by him in the preceding thirty days, or to pay him the agreed percentage upon the estimates of such engineer, “ of the amount due upon said work,” as a complete defence in
In discussing the alleged insufficiency of the several paragraphs of such complaint, we have already said that it was incumbent upon plaintiff herein, for the purpose of stating a cause of action sufficient to withstand a demurrer, to show by proper averment that it had performed all the stipulations of the contract in suit, on its part to be kept and performed, or such facts as would constitute a valid excuse for its nonperformance of such stipulations. While this is so, however, the defendants may, if they choose so to do, plead affirmatively in such an action as the one now before us the substantial non-performance by plaintiff of material stipulations of the contract sued upon, by it to be performed, in bar of its cause of action. This is not controverted by plaintiff’s counsel, as we understand their argument; but they first insist that the second paragraph of the joint answer is bad on demurrer, because it pleads conclusions of law, and not facts, as a defence to the action. Counsel say : “We submit that these averments stated conclusions of law. Whether or not Hill was entitled to estimates depended upon other facts; for instance, the amount and character of the work he had done, which should have been stated.”
It is a mistake, we think, to say that defendants have pleaded conclusions of law and not facts, in the second paragraph of their joint answer. Whether or not Hill was entitled to estimates, was not a conclusion either of law or fact. It was a fact stated in the contract, that engineer Carter should give Hill estimates of his work at the end of each thirty days, during the continuance of the contract.. The ■estimates of the engineer given to Hill, under the contract, were facts and were properly pleaded as such by defendants, without stating the amount and character of the work done by Hill for which such estimates were given. But plaintiff’s counsel further claim that such second paragraph of answer was insufficient on demurrer, because it was stipulated in the
Passing over a number of the other errors assigned by plaintiff upon the record of this cause, we come now to the con. sideration of the- errors predicated by plaintiff upon the overruling of its demurrers to the several paragraphs of the separate cross-complaint of defendant John F. Hill. This-cross-complaint contained three paragraphs. The first paragraph proceeds upon the theo7y that plaintiff herein is liable-to him for the damages which he claims that he sustained by reason of the alleged failure of engineer Carter to give him.
We are of opinion that the court below clearly erred in overruling plaintiff’s demurrer to the first paragraph of the cross-complaint of defendant John F. Hill. It is manifest, from the entire record of this suit, that the contract and bond declared upon by plaintiff were executed under and pursuant
It follows, therefore, that the first paragraph of defendant Hill’s cross-complaint, the substance of which we have given, proceeds upon a wrong theory, and states facts, which are not sufficient to show that he had, or could have, any valid and subsisting claim or demand against the plaintiff herein.
Without setting out the substance even of the second and third paragraphs of such cross-complaint, we may say generally that they each proceed upon the same theory, and are open to the same objections, as the first paragraph of such cross-complaint.
Plaintiff’s demurrers to each paragraph of Hill’s cross-complaint were well taken, and ought to have been sustained.
The judgment is reversed, with costs, and the cause is remanded for further proceedings in accordance with this opinion.