18 Ind. App. 103 | Ind. Ct. App. | 1896
The appellees, as partners, brought this suit to foreclose a statutory lien for an assessment for the construction of a sidewalk in front of appellant’s property, in North Illinois street, in the city of Indianapolis. The complaint is assailed by demurrer and otherwise, upon the alleged ground “that it is based upon a contract on the part of the appellees to construct a sidewalk according to certain plans and specifications, and contains no proper or sufficient averment that the appellees completed the work and performed all the conditions of said contract on their part to be performed.”
The objection is not well taken. The complaint avers, among other things, “that said plaintiffs completed said work in accordance with the terms and stipulations of said agreement, to the entire satisfaction of the department of public works of said city, and the same was duly accepted by said department.”
Granting that performance is a condition precedent, and that the complaint would not be sufficient without
Nor is it essential that the party alleging the performance shall use the exact words o"f the statute. It is sufficient if equivalent language be employed. Louisville Underwriters v. Durland, 123 Ind. 544. . If it be true that the appellees “completed the work in accordance with the terms and stipulations of the agreement,” and “to the entire satisfaction of the depart•ment of public works of said city, and the same was duly accepted by said department,” they have performed all the conditions on their part. It is true the averment contained in the complaint is somewhat in the nature of a conclusion, and that conclusions are, as a general rule, obnoxious to the rules of good pleading, but the language here used partakes no more of the characteristics of a legal conclusion than that employed by the statute itself. It cannot, therefore, be fatally defective on this ground.
It is next insisted that the court erred in sustaining the demurrer of the appellees to the appellant’s counterclaim. This pleading proceeds upon the theory that the work was not .done according to the plans and specifications, and that the appellant was damaged thereby. We are of opinion that a counterclaim will not lie in such a case. If the failure to do the work according to the stipulations of the contract can at
In Laverty v. State, ex rel., 109 Ind. 217, the Supreme
The appellant further complains that the court erred in sustaining the appellees’ demurrer to his answer. This pleading contains a' statement of substantially the same facts that are set forth in what is denominated the counterclaim, upon which we have just passed. It attempts to set up these facts as a defense to the appellees’ right of enforcing the lien, on the ground that the work was not done according to the contract. The board of public works are by the statute made the sole judges of the question whether the work has been done according to the terms and provisions of the contract or not. Section 3844, Burns’ R. S. 1894. It is held by some of the authorities that such acceptance is only prima facie evidence of the performance according to the contract. But where the statute gives no appeal, or no right to contest the question of the proper performance of the work, the great weight of authority is that the acceptance is conclusive upon the property owner, unless such acceptance was fraudulent. Section 416, Elliott, Roads and Streets. People, ex rel., v. Fidelity and Casualty Co., 153 Ill. 25, 38 N. E. 752; Board, etc., v. Newlin, 132 Ind. 27.
Says Judge Cooley: “It is no defense to an assessment that the contract for the work was not performed according to its terms. The proper authorities must decide upon this, and if they accept the work the acceptance, in the absence of fraud, is conclusive.” Cooley, Tax’n (1st ed.), 468.
An attempt is made in the answer to show that the deviation from the terms of the contract by the ap
The appellant also attempts to raise the constitutionality of the statute under which these proceedings were had, because such statute deprives the citizen of his property without “due process of law.” But it is not our province to decide such questions, and as this case was transferred to our docket from that of the Supreme Court, we must assume that that court had determined that the question was not properly presented.
Judgment affirmed.