46 Ind. App. 65 | Ind. Ct. App. | 1909
This is a suit on behalf of appellants on four promissory notes and proceedings in attachment against W. O. Eaton & Co., William O. Eaton and Sheldon S. Eaton, and in garnishment against the County of Carroll, as debtors of W. O. Eaton & Co., William O. Eaton and Sheldon S. Eaton. There was a special finding of facts and conclusions of law stated thereon.
It appears from the special finding of facts that William O. Eaton and Sheldon S.- Eaton, in 1903, 1904 and 1905, were doing business under the firm name of W. O. Eaton & Co., and under such firm name, in 1903, entered into a contract for the construction óf the Madison township gravel
It also appears that on March 6, 1905, W. O. Eaton & Co. made an assignment to appellants of all amounts due to said company, or that might become due for work theretofore done, or that might thereafter be done, as collateral to secure $500 lent by said appellants to said W. O. Eaton & Co., said assignment being subject to an assignment to Joseph E. Ruffing; that on June 10, 1905, said W. O. Eaton & Co. executed to appellants an order on the auditor of Carroll county for the first $2,600.due on an estimate then to be made; that on February 8, 1905, said W. O. Eaton & Co. executed to Joseph E. Ruffing an instrument in writing, whereby they
By their pleadings, appellants and appellee Ruffing seek to have the $3,344, allowed by the board of commissioners to Prey, Prey & Taylor, that is now in the hands of the sheriff, applied to the liquidation of the various debts owing to them by W. O. Eaton & Co.; while Prey, Prey & Taylor seek to have said sum applied to the payment of debts contracted by them in the construction of the road. The court gave judgment for appellants and appellee Ruffing for the amount of three notes, and adjudged that appellees Prey, Prey & Taylor were entitled to have $2,644 of the money in the hands of the sheriff applied to the payment of their claims, and that $700 thereof should be applied to the payment of appellants’ and appellee Ruffing’s claims.
Appellants’ complaint is in five paragraphs, based upon promissory notes. In each, the contract of W. O. Eaton & Co. with the board of county commissioners, for the construction of the Madison township gravel road, is set up, the assignment to appellants is averred, and it is alleged that the amount of $3,344 in the hands of the commissioners is due on said contract. The prayer is for judgment for the amount of the notes and that said board of commissioners be ordered to pay to appellants on said contract said sum in its possession. Each of said paragraphs also avers that appellees claim some interest in. said fund, and they were made parties to answer as to such interest. Appellee Ruffing filed a cross-complaint against his coappellees and appellants, set
The overruling of these demurrers is assigned as error.
Furthermore, the second agreement entered into between cross-complainants, the Eatons and the board of commissioners, was in the nature of an assignment by said Eatons to said cross-complainants of so much of the money to be received on the original contract with said board as was necessary to complete said road. The cross-complainants were charged with the whole duty of carrying on the work to completion. They were to make no profits; the profits, if any, were to go to the Eatons. Their interest was to see that cross-complainants fully performed the contract. They were in the position of assignees with a reserved interest. This interest, and the only interest they had, was adverse to the interests of cross-complainants and they were properly made defendants to protect that interest. Lake Erie, etc., R. Co. v. Hobbs (1907), 40 Ind. App. 511.
It is also urged that the court erred in overruling appellants’ demurrer to said cross-complaint, for the reason that it does not state facts sufficient to constitute a cause of action against them; and as a basis of this contention, it is. pointed out that it is neither averred that appellants claim some interest adverse to cross-complainants, which is unfounded and without right, nor does said cross-complaint, by
The only issue between the parties was, To whom did the fund belong? Each was affirmatively asserting his exclusive right to it. This presented an equitable controversy. All of the parties were before the court. Each was fully
A special finding cannot supply essential averments omitted from a pleading, but it may be looked to to ascertain whether errors in rulings on pleadings were harmless. Goodwine v. Cadwallader (1902), 158 Ind. 202.
The court found specially that appellees Prey, Prey & Taylor had received from the board of commissioners, under their contract of August 7, 1905, the sum of $9,896; that, in addition, they had advanced from their personal funds $2,740.20; that this amount had been expended as follows: $4,177.36 upon debts incurred by W. O. Eaton & Co. prior to August 7, 1905, for labor and materials used in the work on said road; $546.31 for labor and material used in the repair of work done by W. O. Eaton & Co. in order to secure its acceptance; $7,912.53 for labor and material used upon that part of the road wholly constructed after August 7.
The court further found that there were unpaid claims for labor and material used in the construction of said road to the amount of $302.75; that appellees Prey, Prey & Taylor had incurred necessary legal expenses to the amount of $180 in the performance of the work and in securing its acceptance ; that said appellees had also incurred an expense in the additional sum of $612.09, in investigating claims, in the payment of them and in securing the acceptance of the work; that if said sums of $302.75, $180 and $612.09 were added to the $2,740.20 advanced by said appellees, and the whole of the sum here in controversy — $3,344—be deducted there
It is insisted by appellants and appellee Ruffing that the court’s finding with reference to the amounts paid on the debts of W. O. Eaton & Co. incurred prior to August 7, and the amount of unpaid claims and the amount of attorneys’ fees and Bedgood’s expenses are without the issues and should not be considered, since the cross-complaint makes no averment of such payments. It therefore becomes incumbent upon us to determine what the issues between the parties were.
Appellants, to establish their claim and to meet the issue, introduced as evidence-in-chief the original contract, the bond of appellees, the agreement between appellees and the board of commissioners of August 7, the assignment from the Eatons to appellants, the records of the board of commissioners showing the consideration and acceptance not only of that portion of the road for which the particular fund in controversy was allowed, but also the completion and accept
Our conclusion on the foregoing matters disposes of the questions raised as to the admissibility of the evidence of witnesses John Draper, Alfred Livingston and Russell K. Bedgood as to the amount of work done by Bedgood in repairing old work done by W. O. Eaton & Go., and as to the value of Bedgood’s services in constructing the road and paying claims, and as to the payment by said Bedgood of $4,177.36 on old debts of W. O. Eaton & Co. and $180 attorneys’ fees.
Many other questions are presented by appellants and appellee Ruffing for our consideration, all in á measure kindred to that already discussed. It would be unprofitable to discuss them separately, but, in our view of the case, they may be disposed of by an analysis and determination of the respective rights of Ruffing and appellants under their assignments from the Eatons.
It also appears that the contract was for a stated amount for the whole work, with payments of eighty per cent of the estimated amount of work done at certain intervals. Subsequent to the assignments, and before any further work was done, the contractors wholly abandoned the work, and the board of commissioners exercised their option under the contract and entered into an agreement with the appellees whereby appellees Frey, Frey & Taylor stepped into the shoes of the original contractors and agreed to complete the work in conformity with the original contract and for the remainder of the contract price, and pay not only the cost of completion but also the unpaid claims against the road theretofore contracted for by the Eatons in the construction of the work done by them; the remainder of the contract price,
It must therefore be apparent that before appellants or appellee Ruffing, under the facts in this case, would be entitled to share in the fund in controversy, they or he must show that said fund is due to them, as assignees of the Eatons, after the work is completed and the whole cost of construction, as provided in the second agreement, has been paid.
We find no reversible error. Judgment affirmed.