79 Ind. 137 | Ind. | 1881
— This was a suit by the appellant against •the appellee, to recover an assessment by the trustees of the town of Jasper for the grading of Main street.
A demurrer to the amended complaint for want of facts sufficient, etc., was sustained, and judgment was rendered thereupon against the appellant, who now assigns error in sustaining said demurrer.
The first question is, Must a contract by the trustees of an incorporated town, for the grading of a street, be in writing ?
In the case of Overshiner v. Jones, 66 Ind. 452, this court held that, under the provisions of the statute, sections 8, 9 and 10, of chapter 267, 1 R. S. 1876, p. 893, contracts for :such improvements of streets must be in writing. The court ;said: “ There is no averment in the appellee’s complaint, that the contract between the town of Elwood and the appellee, under which he claimed the street improvement was made, was a written contract. In the absence of such an averment, and where, as in this case, a copy of the alleged contract has not been filed with, nor made part of, the appellee’s complaint, we are bound to presume that the contract is not in writing.”
The case last cited strongly resembles the case at bar. In the former there was a written bid for the work; in the latter there was a verbal bid, alleged to have been accepted; but this bid and acceptance are not counted upon as constituting the contract. The only substantial difference between
But whatever may be the terms of a bond, given merely to secure a contract, it is not the contract itself, and where the law requires a written contract, and that contract to be made a part of the complaint, the production of a bond to secure an unwritten contract, which bond is nothing more than the conditional promise of the principal and his sureties to pay damages, will not satisfy the law. The complaint was not sufficient, because it failed to show a contract in writing. Anthony v. Williams, 47 Ind. 565; Moore v. Cline, 61 Ind. 113; Anthony v. Cooley, 61 Ind. 323; City of Indianapolis v. Imberry, 17 Ind. 175; Moberry v. City of Jeffersonville, 38 Ind. 198; Town of Tipton v. Jones, 77 Ind. 307.
The complaint as amended contains the following statement : “ That the defendant resided on said street and was present during the time that the work was done, and made no • objection to the same, and said improvement benefited said defendant's property abutting on said grade, in the sum of' $1,000, and said defendant received and accepted said grade." It is urged by the counsel of the appellee that these statements show that the defendant ratified the action of the trustees and is estopped from contesting the assessment. There are cases in which it has been held that, where a contract has. been made for a street improvement, property owners can not stand by and see the improvement made without effort by injunction to prevent it. City of Lafayette v. Fowler, 34 Ind. 140; City of Evansville v. Pfisterer, 34 Ind. 36; Hellenkamp v. City of Lafayette, 30 Ind. 192; Palmer v. Stumph, 29 Ind. 329. The statute provides that after work done under a contract no question of fact shall be tried that arose prior to the contract. 1 R. S. 1876, p. 894, section 10. But there can be no estoppel Avhere the party asserting the estoppel was in no degree influenced by the acts or admissions pleaded in estoppel. Fletcher v. Holmes, 25 Ind. 458. Nor unless theparty insisting upon the estoppel did something upon the faith of’ the acts of the other party. Cox v. Vickers, 35 Ind. 27. Nor where the facts and the legal rights of the parties are or might have been equally known to both parties. Foster v. Albert, 42 Ind. 40; Hosford v. Johnson, 74 Ind. 479. The mere silence of the defendant could not make him liable to pay for an assessment made without any contract.
A land-owner who, Avith full knowledge and Avithout objection, permits another having equal knowledge to level and carry away his soil, may in some cases be estopped from claiming compensation therefor, but his mere silence will not make him liable to pay for the labor.
There was no error in sustaining the demurrer to the amended complaint. The judgment of the court below ought to be affirmed.
Per Curiam. — It is therefore ordered, on the foregoing opinion, that the judgment of the court below be, and it is hereby in all things affirmed, at the costs of the appellee.