167 Ind. 249 | Ind. | 1906
Appellee commenced this action in the Adams Circuit Court to recover against the city of Decatur for services rendered as a special civil engineer. On change of venue the cause was tried in the Superior Court of Allen County.
The complaint is in three paragraphs. The first substantially alleges the following facts: On April 22, 1903, appellee contracted with the common council of the city of Decatur to serve in its employ as a special engineer. It
The second paragraph alleges the same facts as those averred in the first, but in addition thereto it is shown that on May 3, 1904, appellee made- out an itemized bill and account for the amount due and owing to him by the city, which bill was fully verified by him before the clerk of appellant city, and was filed in the office of said official; that on May 17, 1904, this bill was presented to the common council of said city at its regular session, and said body, after considering the same, allowed said claim in favor of appellee, and thereupon the clerk of the city drew
The third paragraph is founded on what purports to be an order or warrant of the city of Decatur in favor of appellee for $429.59, which amount had been duly allowed by its common council on May 17, 1904, on account of services which appellee had rendered for the city as a special civil engineer. It is further alleged that the clerk of said city on May 18, 1904, issued to appellee a warrant or order for said sum so allowed by the common council. It is averred that a copy of said warrant, marked exhibit A, is filed with and made a part of the paragraph in question. It is further alleged that after appellee received said warrant he presented the same to the treasurer of the city and demanded payment thereof; that the treasurer refused to pay said warrant, and that said sum of $429.59, together with the interest thereon, is due and wholly unpaid. Wherefore judgment is demanded, etc. A copy of said order is as follows:
“No. 5,795. General Fund. $429.59.
Office of City Clerk,
Decatur, Indiana, May 18, 1904.
To the Treasurer of the city of Decatur:
Pay to George E. McKean or order $429.59. Date of allowance 5-17-1904. Services as City Civil Engineer.
Attest: D. M. Hower, City Clerk.
_, Mayor."
Appellant filed an answer in six paragraphs, to which no demurrer appears to have been filed, and no question is raised in respect thereto. Upon the issues joined there was-a trial by the court and a general finding in favor of appellee to the effect that the general allegations of his complaint were true, and that he was entitled to recover the sum of $429.59. There, was a motion for a new trial, assigning, among other reasons therefor, the statutory grounds. This motion, over appellant’s exception, was denied, and a judgment in favor of appellee was rendered upon the finding.
It will be noted that the demurrer in the case at bar was addressed separately and severally to the first, second, and third paragraphs of the complaint, on the ground that not one stated facts sufficient, etc., which demurrer, as the
It is further insisted, however, that this paragraph is also insufficient because, (1) it does not appear from the facts therein alleged that the common council ever ordered, authorized, or ratified the payment to appellee of any per cent; (2) that the council could not enter into a contract in regard to the payment of the salary or wages of a public officer so uncertain as a percentage of the amount of improvements made by the city during the year.
9. While there is some conflict in the evidence, nevertheless it may be said to establish the following facts: Appellant city is incorporated under the general laws of this State and has a population of four thousand and over. In March, 1903, its regularly appointed and qualified civil engineer died. In the month of April following, the city being without a civil engineer, the common council, having in contemplation the making of many public improvements during the ensuing year, deemed it necessary to employ a competent civil engineer to make the grades, levels, etc., for such improvements. Accordingly the council, at a regular session held about April 22, 1903, on motion ordered that the mayor of the city appoint a committee of three of the members of the common council to employ a special engineer to make the grades and levels for the general improvements to be made by the city. This committee was appointed by the mayor, and at a subsequent meeting of the council it reported to that body that
There is a conflict in the evidence as to whether the committee reported to the council in regard to the compensation which it had agreed to pay appellee for his services as special engineer. There is, however, evidence to show that the committee made a verbal report to the council as to the compensation which it had agreed to pay appellee for his services, but no record appears to have been made of this report. Appellee, without taking any oath of office or giving any bond, entered into the employ of the city and served it for a period of one year, performing all the work which he was directed to do by the city. He was allowed by the council and paid each month $40, and at the end of the year for which he was employed his services were terminated by the common council.
The improvements made by the city for which he did the surveying, etc., were all completed according to the plans
■ At the time of his employment he was the regularly elected and qualified surveyor of Adams county, in which appellant city is situated. During the year of his employment the city made improvements to the value and amount of $57,959.53, upon which he performed the work of a civil engineer. After deducting $15,000 from the amount, there remained $42,959.53, upon which, under the contract of his employment, he was entitled to one per cent, such percentage being $429.59, the amount for which the judgment was rendered. Upon the termination of his services he presented to the common council of the city a claim for said amount, which claim, after being duly considered by that body, was allowed, and the clerk drew and signed a warrant thereon upon the city treasurer. This warrant, as the evidence shows, the mayor refused to sign, and the treasurer accordingly refused to pay. This warrant was introduced in evidence by appellee, and is the same warrant upon which the third paragraph of the complaint is founded.
Eor the error of the court in overruling the demurrer to the third paragraph of the complaint the judgment is reversed, with instructions to the lower court to sustain the demurrer to this paragraph, and for further proceedings not inconsistent with this opinion.