166 Ind. 550 | Ind. | 1906
—This is an action upon an open account for work and labor which appellee claims he performed for appellants in the construction of a certain macadamized road in White county. The road was constructed under the provisions of the free gravel road act of 1901 (Acts 1901, p. 449, §6899 et seq. Burns 1901). The appellants were the contractors, and appellee the superintendent of the road, under appointment and pay of the board of commissioners. The complaint counts on a special contract for work and labor at $1.50 per day, but it is not shown that the work was performed on the road of which the plaintiff was the superintendent. The answer was the general denial, and payment. Verdict and judgment for plaintiff for the amount of his claim. The questions presented arise under the overruling of appellants’ motion for a new trial!
The plaintiff testified that he was appointed superintendent by the board of commissioners and gave bond for the faithful discharge of his duties, namely, to see that the contractors executed the work of construction strictly in accordance with the terms and specifications of their contract, and his compensation was to be $1.50 per day. Under his said appointment he acted as superintendent 224 days, for which the county paid him at the contract rate. During the time he was acting as superintendent he also worked for the contractors (appellants) at general and common labor on the road, under a contract that he was to receive for his work the same price paid the other hands on the road. Under this contract he worked for appellants 167 days and had received from them $54 on account. On cross-examination he testified as follows: “Why did you work for $1.50 per day? A. Because I was getting work from both parties. You worked for the county, and for those whom you were employed to watch, and got pay from both ? A. Yes, sir; and I earned my money.”
Touching the testimony, appellants, at the proper time, requested the court to give to the jury the following in
In Lum v. McEwen, supra, the manager of' a lumber manufacturing business agreed with a third person, on the promise of $5,000, to use his influence as such manager to secure the removal by the company of its mill to another place and for the extension of its logging road to that place. The court says: “Actual injury is not the principle the law proceeds on, in holding such transactions void. Fidelity in the agent is what is aimed at, and, as a means of securing it, the law will not permit him to place himself in a position in which they may be tempted by his own private interests to disregard those of his principal.”
In Harrington v. Victoria, etc., Dock Co. (1878), 3 Q. B. D. 549, a railroad company contemplating certain repairs employed the plaintiff as an engineer to advise it in respect thereto. The defendants, having submitted a bid for doing the work, agreed to employ the plaintiff on a five per cent commission to superintend the repairs, if he would use his influence with the railroad company to induce it to accept the defendants’ bid. The jury found that the con
So, in this case, no fact is disclosed by the record to indicate that appellee was negligent or inefficient in protecting the interests of the taxpayers, but, as we have seen, the rule admits of no exception. From these considerations we conclude that appellee, while acting in a trust capacity on behalf of the taxpayers of his township, and at their expense, in safeguarding their interests in the construction of road Ro. 2, was not in a position to accept employment from the contractors to work for them in making the road. The law forbids the inconsistent position of pretending to serve both the people and the contractors at the same time. The contract sued on being illegal, the courts can afford no relief, and the court erred in refusing to give to the jury instruction one, requested by appellants.
For error of the court in refusing to give instruction one, requested by appellants, the judgment must be reversed. Judgment reversed, and cause remanded, with instructions to grant appellants a new trial.