166 Ind. 325 | Ind. | 1905
—This suit was brought by Charles Wolff and others, as taxpayers of the townships of Spring-, field, Ooolspring and Michigan, in Laporte county, against the board of commissioners of said county, the individual members of said board, and Arlantis Runyan, Thomas W. Sullivan and Calvin L. Cree, copartners and contractors for the construction of certain free gravel roads in said townships. The action was dismissed as to defendant Calvin L. Cree. The complaint was in a single paragraph, and sought to enjoin the board from accepting said roads as completed according to contract, from allowing the claims of the contractors for work, and from causing such claims to be paid. The complaint was answered by a general denial. The venue of the cause was changed to the Marshall Circuit Court. The cause was tried by the court, and at appellants’ request a special finding made and conclusions of law stated thereon. Motions for a new trial were overruled, and judgment was rendered for appellees. The contractors Runyan and Sullivan appealed, and made the board of commissioners a coparty; but it has taken no steps to secure a reversal of the judgment.
The assignment of errors by Runyan and Sullivan challenges the sufficiency of the complaint, the correctness of each conclusion of law stated, and the decisions of the court in overruling motions to modify the judgment, and for a new trial.
The complaint alleges in detail all the proceedings leading up to the improvement of the roads and the letting of the contract to appellants Runyan and Sullivan at their bid of $83,675, which was the lowest bid offered for said work. It is averred that a contract was duly entered into between the board and said Runyan'and Sullivan, whereby said appellants, for the consideration named, agreed to con
The complaint alleged that the board had entered into a corrupt and collusive agreement with the contractors, and that the acts complained of and threatened were done and to be taken in pursuance of such agreement and to the injury of appellees. This was a material allegation, and the existence of the alleged fraudulent agreement was indispensably necessary to the relief sought. A mere finding of negligence, however gross, or a wilful disregard of duty on the part of the board in the conduct of this business, will not suffice to sustain this charge. When fraud is relied upon as a basis of an action, it must be pleaded as a fact, and the facts and circumstances constituting the fraud must be set out clearly and with particularity. Conant v. National State Bank (1889), 121 Ind. 323, 329; Bodkin v. Merit (1885), 102 Ind. 293, 297; Hardy v. Brier (1883), 91 Ind. 91, 95; Seward v. Town of Liberty (1895), 142 Ind. 551, 553.
If it be conceded that the allegations of the complaint in this case were sufficient to show that the legal remedy by appeal was inadequate, still there could be no recovery by appellees in the absence of a finding of fact that the board and the contractors had entered into á corrupt and fraudulent agreement to do the wrongful things complained of, and that the threatened action of the board was actuated by fraudulent motives and to be taken in pursuance of such corrupt and collusive agreement.
The conclusions of law in favor of appellees were not warranted by the facts found, and conclusions of law should have been stated in favor of appellants.