122 Ind. 215 | Ind. | 1890
The board of commissioners of Clinton county, at the regular June session, 1885, ordered the construction of a stone and brick culvert across Armstrong branch, where said branch crosses South Main street, in the city of Frankfort, the culvert to extend the- entire width of said street, sixty feet, and appointed James R. Brown, the county surveyor, engineer and superintendent, to prepare specifications for such culvert, and, after giving thirty days’ notice thereof, to receive proposals for such construction; to contract with the best bidder therefor, and to superintend the construction of said culvert; the said Brown entei’ed upon the discharge of said duties, gave notice and received bids, and the board contracted the work to Francis M. Hill, the appellee, his being the best bid; the appellee com
It is urged that the claim is not properly itemized and' dated. This objection is not well taken; the account is dated and itemized. It is further urged that the claim is for voluntary services, and hence no appeal lies. We do not think the claim, as presented, comes within the line of vol
The appellee filed an amended complaint in the circuit court-, to which amended complaint appellant demurred for cause that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was overruled and exceptions taken, and this ruling is assigned as error.
The amended complaint is as follows:
The plaintiff, Francis M. Hill, complains of the defendant, and, for amended complaint, says that the board of commissioners on the 6th day of June, 1885. at a regular session held in the auditor’s office in the court-house, in the city of Frankfort, Clinton county, Indiana, entered an order of record that there be built a stone and brick culvert across Armstrong branch where the highway running south from the south end of Main street, in the said city of Frankfort, intersects and crosses said branch, said highway being a continuation of said street across said branch, said culvert to extend the entire width of said highway, and appointed James R. Brown engineer and superintendent to prepare specifications and secure proposals for the construction, after giving thirty days notice thereof, and to superintend the construction of said culvert. Afterwards, to wit, at a special session held on the 11th day of July, 1885, at the auditor’s office in the court-house, in the said city of Frankfort, for the purpose of considering the proposals for the construction of said culvert as aforesaid, the board having opened and examined all the bids, found that the bid of plaintiff was the lowest and best bid, and entered an order that his bid be accepted and accepted his bid, and James R. Brown, the superintendent and engineer, was ordered to prepare the necessary contract, and said board approved the bond of said plaintiff at said meeting thereof, and contracted with him as aforesaid, a copy of said contract and of said bid on file herewith, being marked “Exhibit B,” and made part of this complaint; that said plain
“ Exhibit A.” Bill of Particulars. Clinton County, Indiana.
To Francis M. Hill, Dr.
January 4th, 1887. For rebuilding Main street bridge over Armsti’ong Branch.
Stone furnished, 22-| p. at $1.60........$36 00
Cement, per Coulter, Given & Co....... 42 60
Sand, 17 loads at $1 ...... ; ..... . 17 00
False work for arches............. 2 00
Laying 14,000 brick at $3.50 ......... 49 00
Laying 78 yards stone at $1.20 ......... 93 60
Cleaning old materials . ........... 50 00
Total.................. $290 20
A copy of the bid and the contract and bond for constructing the culvert is set out, marked “ Exhibit B.”
It is contended by counsel for appellant that the contract for rebuilding the bridge, or culvert, is beyond the jurisdiction of the board, and is void ; that such board can only bind the county in the mode pointed out by statute, by advertising for bids, and letting the contract as provided by the statute.
The paragraph of complaint alleges the advertising and letting of the original contract for the culvert, in accordance with the requirements of the statute, and the appointment
The case of Board, etc., v. Byrne, 67 Ind. 21, was an action for work and labor in constructing a bridge, and the court says : “ The board appointed a superintendent of the work; and there was evidence tending to show that after the contract had been let, the superintendent required the work to be done in a way that required more mason work, and possibly more filling, than was contemplated by the original contract; and this action -was brought, in part at least, to recover for the extra work thus done. We can not say that the extra work was not judiciously and properly required.
• After quoting the statute relating to the appointment of a superintendent to oversee work, the court further says:
“ It is thus seen that the superintendent has power to let contracts for the construction of bridges, and to superintend the work. We think this makes the superintendent the agent of the county for the purpose of the construction of the bridge or bridges, and that he may bind the county by requiring work to be done beyond that contemplated by the contract. Such authority in the superintendent is necessary for the county, in order that the structure may turn out to be substantial and lasting; and it is proper, in order that the contractor required to perform the extra work may have a remedy therefor.”
In this case, as it appears by the allegations of the complaint, a bridge had been constructed to cost some five hundred and forty dollars. It was contracted, and the appellee in pursuance of his contract had so nearly completed the bridge that the superintendent had estimated the work done under the contract, and the board had allowed and paid him four hundred and thirty dollars on the work when an extraordinary flood washed the bridge out and made it necessary to complete the bridge to do work and furnish materials which were unforeseen and not contemplated by the contract. The bridge was located and nearly constructed when it was ascertained that the bridge was not altogether on the street, that it had been located ten feet from where it was intended. It was intended to reach across the street, when, as constructed, it would extend ten feet beyond' the street on one side and fall ten feet short of reaching the opposite side of the street. To accomplish the purpose intended by the board of commissioners if it had not been washed out by the flood, it would have been necessary to rebuild the
The next alleged error is the ruling of the court in sustaining a demurrer to the third paragraph of defendant’s .answer.
There was no error in this ruling. The paragraph-alleged that the work and labor performed, and materials furnished were performed under a special contract with the city oí Erankfort, whereby the city was to pay the plaintiff $50, and the county was to donate to him $50 when the work was completed. This was, in effect, but an argumentative denial of the defendant’s liability, and proof of the facts alleged in the paragraph might have been made under the general denial which was pleaded in another paragraph.
The next alleged error is the overruling of the motion for .a new trial.
There was a verdict and judgment for appellee, for the full amount of the extra work and materials in rebuilding the bridge. The complaint is based upon the theory that John Pruitt, the chairman of the board of commissioners, and the ■superintendent appointed by the board, directed him to change the location of the bridge, and to rebuild it, the commissioner promising him that he should be paid for the work as per the original contract price.
The motion for a new trial presents the question as to whether the allegations of the complaint are sustained by the evidence, and if the plaintiff recovers at all he must recover on the theory of his complaint.
It is contended by the appellant that there is no evidence in the record to sustain the allegations of the complaint, that either the commissioner or the engineer or superintendent directed a change as to the location of the bridge, or directed
Judgment reversed, at costs of appellee, with instructions to sustain the appellant’s motion for new trial.