19 Ind. App. 298 | Ind. Ct. App. | 1898
— The material facts charged in the complaint are that on October 7, 1891, John Reese and John Hayes, under the firm name of Hayes & Reese, entered into a written contract with the appellant to improve a certain street in said city; that before said work was commenced Reese sublet his interest in said improvement contract to Edward Stack and John Buckley; that afterwards, and before the work was begun, Hayes, Stack, and Buckley, sublet the work to appellee; that thereupon the appellee and Hayes, Stack, and Buck-ley entered into a written contract whereby appellee agreed to fulfill the terms and conditions of the contract between appellant and Hayes and Reese; that in compliance with the terms of said contract between appellant and Hayes & Reese, appellee commenced the work of said improvement, and prosecuted said work for many weeks, with the knowledge and consent of appellant; that appellee had almost completed the grading of said street according to the terms of the contract, when appellant, without the knowledge or consent of appellee, entered into a contract with one A. A. Knapp Company for the construction of a sewer in and along said street and the part thereof which appellee was then improving; that appellant thereupon demanded that appellee should cease, his said work of improvement in order that said sewer niight first be constructed in said street; that appellee refused to give up the possession of said street; that thereupon said Hayes, Buckley, and Stack came to appellee, and requested and demanded that he suspend work on said street; that appellee still refused to abandon his said work, when he was in
The appellant demurred to the complaint for want of sufficient facts, which the court overruled, and appellant excepted. The cause was put at issue, tried by the court, resulting in a finding and judgment for appellee in the sum of $760.00. The errors assigned are: (1) That the court erred in overruling the demurrer to the complaint, and (2) that the court erred in overruling appellant’s motion for a new triál.
The record, as it comes to us, presents but one question, and that is the sufficiency of the complaint. The motion for a new trial is based on questions which arose in the progress of the trial in regard to the rejection and admission of evidence, that the dam-' ages are excessive, that the decision of the court is not sustained by sufficient evidence, and that the de
The motion for a new trial was overruled June 15, 1895, and ninety days given in which to prepare and file a bill of exceptions. The record shows that on September 13, 1895, the bill of exceptions was presented to and signed by the judge, and the clerk certifies that the longhand manuscript of the evidence, as transcribed by the shorthand reporter, was filed in the clerk’s office September 17, 1895, being four days after it was incorporated in the bill of exceptions. Under the uniform authorities in this State, the longhand manuscript of the evidence must be filed in the clerk’s office before it is incorporated in the bill of exceptions. Upon this proposition the citation of authorities is unnecesary.
The theory of the complaint is that appellant wrongfully caused appellee to suspend work on the' street he was improving under the contract sublet to him by Hayes, Buckley, and Stack, and afterwards let the contract for the same improvement to another, without his knowledge or consent, after he had done work and expended money under the contract. To state it differently, appellee’s theory is that appellant is liable to him for the work done and money expended under his contract on the ground that appellant caused him to suspend his work, gave the possession of the street to another for the construction of a sewer therein, and then violated its contract with him by letting the contract to another, and refusing to put him in possession of the street to complete the work, and in refusing to restore the street to the condition in which he left it. The original contract between Hayes and Reese and appellant, is not brought into the record, and we have no means of knowing
The rule is well settled that, where there has been a breach of contract by one of the parties thereto, the other is at least entitled to recover nominal damages. Rosenbaum v. McThomas, 34 Ind. 331; Browning v. Simons, 17 Ind. App. 45. It has been held that in an action for a breach of contract, a complaint which states facts sufficient to entitle the plaintiff to nominal damages is sufficient to withstand a demurrer. Richter v. Meyers, 5 Ind. App. 33. Upon this proposition alone the conjplaint is sufficient; but we think the facts stated are sufficient to entitle the appellee to recover the actual damages sustained, which would be the reasonable value of wmrk done, to which should be added the amount of money necessarily expended in the prosecution of the improvement. We must presume that the contract between appellant and appellee’s assignors imposed upon appellant the duty to provide for the payment of the work by assessments against abutting property, as this is the only means known to the law by which such compensation may be provided.
When a city accepts work upon its public streets, under contract for such services, and by affimative action rescinds or discontinues the work under contract, and in this way prevents the possibility of levying and collecting assessments upon the property benefited, it cannot avoid liability for such a breach of contract. This view seems fully supported by the authorities. See Palmer v. City of Brooklyn, 32 N. Y. Supp. 739; Weston v. City of Syracuse, 31 N.Y. Supp.