12 Ind. App. 479 | Ind. Ct. App. | 1895
The only specification of error is the overruling of the appellant’s motion for a new trial. It is earnestly contended by appellee’s counsel that the bill of exceptions is not properly in the record, there being no sufficient certificate of the clerk. It is true that in the clerk’s certificate to the transcript there is no recital of the filing of the bill of exceptions. But the transcript does contain a record entry just preceding the bill of exceptions, which shows “that on the
The appellee filed a claim before the board of commissioners against the county for 2,300 cubic yards of dirt at 8 cents a yard, making $184, and giving credit for a balance due from him on a donation for the construction of the approach to a bridge in Rush county of $34, leaving, as he alleged, a balance due him of $150. The board disallowed the claim and the appellee appealed to the circuit court, where the cause was tried by a jury and a verdict rendered in favor of the appellee. The insufficiency of the evidence was assigned as a ground for a new trial. The account filed, which stands for the complaint in this case, proceeds upon the theory of an implied contract between the appellant and appellee.
It appears from the evidence that the board of commissioners erected the abutments and superstructure of a bridge and all of the bridge except the approaches at Webb’s Ford, on a public highway in Rush county, In
Appellant insists that if there was any just claim by appellee against appellant, it must be by reason of damages to his land, and that as this was a tort the present action could not be sustained. We think the evidence fairly sustains the appellee’s theory of an implied contract, but if the appellant is liable in tort, the appellee would have a right to waive the tort, and sue as upon contract. 26 Am. and Eng. Encyc. of Law, 774; Furry v. O’Connor, 1 Ind. App. 573.
Moreover, if the agents and officers of the county committed a trespass upon appellant’s land, whereby the county received certain benefits, we know of no reason why the county should not be held liable on an implied contract for the value of the dirt received.
Much stress is laid by appellant’s counsel upon the fact that when appellant’s superintendent got the dirt he told appellee he had no authority to make any contract for dirt, and that the commissioners would not pay for it. The appellee testified positively that he told the superintendent that if he took the dirt from where it was taken,the commissioners must pay forit, and that the superintendent replied that this was a matter between appellee and the commissioners. Hestatedthathetoldthe superintendent he had already donated $100 for the building of the bridge, and did not propose to give any more,
We know of no law that gives a county the right to take such property from a man, without compensation, simply because the agent of the county tells the owner, at the time, that the county does not intend to pay anything. Of course, if the owner consents to such an arrangement, there is nothing to keep the parties from carrying it out; but here the appellee strenuously denies that he ever assented to the taking of this property except for pay. There is sufficient evidence to support the verdict.
During the trial, the appellant offered to introduce in evidence a contract made between appellee and certain other parties on the one hand and the board of commissioners on the other, by the terms of which the appellee and said other parties agreed to build all the approaches to said bridge at their own expense, as directed by the said board, under the direction of the superintendent of construction. The second paragraph of the appellant’s answer relied upon this contract as a defense. In it it is alleged that the material claimed for in the complaint is the same as that mentioned in the contract, and that nothing is due the appellee for the same.
The court sustained the appellee’s objection to the introduction of this contract, and this ruling, it is insisted, constitutes reversible error.
The contract referred to is a proposition on the part of the appellee and others to the board, that if the latter would turn over to them all the subscriptions theretofore taken from citizens for building the approaches to said bridge, without recourse upon the county, the appellee and said others would donate and perform all the labor necessary to build, and would build, all the ap
“I agree to stand good for one hundred dollars of the above mentioned six hundred dollars for approach to bridge at Webb’s Ford. (Signed)
“O. E. Trees.
“Isaac Webb.
“Arthur Webb.
“Harrison Miller.
“Thomas Stark.”
There is not contained in this contract a single word or sentence by which the appellee or those who signed it with him agreed to supply any portion of the materials for building said approaches. All they agree to do is to donate and perform the labor therefor. We do not see, therefore, how the contract could have been any bar to the appellee’s right to a recovery, or could in any manner have tended to defeat the action. The court may have erroneously overruled a demurrer to the answer setting up this contract, but this would be no excuse for overruling an objection to the introduction of the contract in evidence. The averments of this answer are, perhaps, broad enough to justify the court in overruling the demurrer to it, unless the contract itself, filed as an exhibit, must be looked to in order to determine the sufficiency of such answer. Besides, the contract, in so far as it affects the appellee, seems to limit his liability to a donation of $100 in case the approaches are not constructed as agreed, and there was no testimony
Even if it had been shown that the appellee agreed to furnish the dirt, as well as to perform the work upon' these approaches, the contract fixes the appellee’s liability in case of failure, and in no event would the appellant be justified in going upon the appellee’s land and taking away the dirt contrary to his will and direction, although in that case we are not prepared to say that the contract would not have become proper evidence as a part of the history of the transaction between the parties. But, as the appellee never agreed to furnish any portion of the material for the approaches, the contract could not have thrown any light upon the case and was properly excluded.
The court committed no error in instructing the jury that “if the defendant, by its agent or otherwise, took from the premises of the plaintiff, outside of the limits of the highway upon which the fill was made, without the consent of the plaintiff to part with the same without receiving any compensation therefor from the defendant, then there would be an implied obligation upon the part of the defendant to pay the plaintiff the market value of the dirt taken, if any, as aforesaid, and the market value thereof would be the market value of the kind and character of the dirt taken in the neighborhood of said fill, if any.”
There is no merit in the contention that no implied contract could exist against a board of commissioners, and that the only liability such board could incur would
The appellant offered to introduce testimony showing the value of appellee’s farm both before and after the taking of the dirt. To this the appellee objected, and the objection was sustained. This ruling was proper. The appellee certainly had the right to recover the market value of the dirt without reference to the question of any depreciation of the farm. The severance of the dirt from the realty changed it into personal property, but the appellee was just as much the owner after the severance as he was before, and generally speaking the owner has his choice of remedies, either to sue for the damage to the land or the value of the personal property converted, or in a proper case he may recover, besides the value of the property taken, the depreciation in the land, if any. Knisely v. Hire, 2 Ind. App. 86; 26 Am. & Eng. Encyc. Law 774.
Other errors are suggested in the brief of appellant’s counsel, but they are not so presented as to require us to pass upon them. We have not been shown any error in
Judgment affirmed. •