46 Ind. App. 273 | Ind. Ct. App. | 1909
Lead Opinion
This action was brought by appellee, upon a bond given by appellant Donaldson, with his coappellants as sureties thereon, to secure the faithful performance by Donaldson of a contract entered into between Donaldson and the Board of Commissioners of the County of Ripley, for the construction of a number of turnpikes in Shelby township, in said county, under the provisions of the act of 1901 (Acts 1901 p. 449, §6899 et seq. Burns 1901), and the act of 1903 (Acts 1903 p. 263), amendatory thereto, relating to the construction or improvement of public highways.
The complaint was in two paragraphs, appellants’ demurrer to each being overruled. Appellants’ motion to strike out of the complaint certain averments in reference
The issues were submitted to a jury for trial, and a verdict returned in favor of appellee, assessing damages at $4,000. Appellants’ motion for a new trial was overruled, and judgment rendered on the verdict.
Appellants’ assignment of errors in this court assails the ruling of the trial court on the demurrer to the complaint, on appellee’s demurrer to the first and second paragraphs of the cross-complaint, appellants’ demurrer to the third paragraph of appellee’s answer to the third paragraph of the cross-complaint, and appellants’ motion for a new trial.
Appellee assails, by cross-assignment of error, the ruling of the court in striking out parts of its complaint relating to the claim for attorneys’ fees, and in overruling its demurrer to the third paragraph of appellant Donaldson’s cross-complaint.
Appellants have devoted a large part of their argument
Many questions are presented by appellants arising upon the ruling of the court upon appellants’ motion for a new trial, but they are all resolved on the determination of the proper measure of damages for the breach of the bond alleged in the complaint. It is shown that after the execution of the contract appellant Donaldson entered upon its execution, and completed part of the road, and, upon estimates made by the engineer, was allowed by the commissioners, and paid out of the fund provided for that purpose, the sum of $8,220.64; that the total estimated cost of the road was $29,585, which was the exact amount of Donaldson’s bid; that, after the abandonment of the contract by Donaldson, the board of commissioners proceeded to advertise and relet the contract for the completion of the road, precisely as required by the statute in the letting of the original contract, and that for the completion of said road the contract was let the sum of $23,985, and there is no evidence showing that this contract has been carried out. Evidence was admitted and instructions given to the jury upon the theory that, for a breach of the bond sued.on for failure on the part of the principal to complete the road according to contract, the proper measure of damages was the difference between the original contract price plus the amount paid appellant Donaldson for the work done by him thereon
It is true that in the first instance the money derived from the sale of bonds, to be ultimately paid by taxes levied on the given taxing district, as required by the statute, is the only source of revenue from which funds can be derived to pay the expense of constructing roads under this law; but the moment the contractor violates the conditions of his bond, and a liability thereby accrues in favor of the authorities representing the State, another source of revenue arises from which the fund to pay for constructing the road is to be replenished. It was the special purpose of the law in requiring the bond in suit that this fund should be protected from any defaults on the part of the contractor, and neither the contractor nor the sureties on his bond can assert that the second contract is void, because the original contractor, whose default is the occasion of reletting the contract, has received some part of the fund provided for constructing the road.
As between private persons with unlimited powers to contract, the rule announced by appellants is undoubtedly correct, and is sustained by the authorities cited and many
The board of commissioners could, upon the abandonment by the contractor Donaldson of the contract which the bond secured, relet the contract in but one way, and that was by advertising precisely as the law required, accepting the lowest approved bidder, and taking from him a bond, as required by law, to secure the performance of his contract. We think the rule invoked by appellant and announced by the cases cited has no application here, and that where, as in this case, a contract, entered into by a contractor with public authorities for the construction of public work, has been violated by a failure on his part to perform his contract, and the condition of a bond, given to secure the performance, thereby violated, and where the authorities have, with all due formality, entered into a valid contract in the only way that it could be done for the completion of the work, the proper measure of damages is the difference between the original contract price and what the public is required to pay under the new contract.
In the very nature of things, this alone can furnish the proper measure of damages. The board of commissioners has no power to perform the work itself or to hire others to do it, in an ordinary way. It must proceed in strict accordance with the law clothing it wdth power to act, and when it has done this, and has let the contract, then if the second contractor fails to carry out his contract he becomes liable for any damages the board may sustain on account of such failure, but so far as ¿the liability of the original contractor is concerned it is fixed when the contract is relet, and could not be increased by any default on the part of such contractor, whereby the work would have to be relet at a higher
This being the proper rule for the measurement of damages, we think no error intervened in overruling appellants’ motion for a new trial.
"We have examined carefully all the questions arising upon the instructions given and those refused, and upon the admission and rejection of evidence, and we find no reversible error in the record.
Judgment affirmed.
Rehearing
On Petition for Rehearing.
By the fourth instruction given at the* appellees’ request the jury was directed that, to ascertain, the amount of recovery, it should add the amount paid Donaldson and the amount necessary to complete the road, and from the sum thereof subtract the original contract price. The first instruction given by the court of its own motion is to the same effect. These instructions do not declare the amount of the second contract to be the reasonable cost of completion, and the twenty-first instruction asked by appellant emphasized the fact that the second contract was in evidence only for the purpose of throwing light upon the reasonable cost of completing the road. These instructions taken together made the question of damages depend, not on the amount of the second contract, but upon the reasonable cost of completing the work. They were and are unexceptionable from appellant’s standpoint. The amount of recovery shows that the jury did not use the amount of the second contract as a basis for its estimate, the amount of recovery being $1,395.64 less than it would have been had such method been followed.
The opinion heretofore filed is modified to conform with the foregoing, and the petition is overruled.