62 Ind. App. 64 | Ind. Ct. App. | 1916
This was an action by appellee against appellants to recover, upon a contractor’s bond executed by appellants, as sureties, and James A. Farabee and John L. Berry, as principals, to Lewis School Township, of Clay county, Indiana, for the repair of a certain sehoolhouse belonging to said school township, said claim of appellee being for certain material alleged to have been furnished to, and used by, the contractors.
The errors assigned question the action of the court in overruling the separate and several demurrers of appellants to the first and second paragraphs of complaint, and also the correctness of the court’s first conclusion of law upon the special finding of facts. Appellants also assign jointly error of the court in sustaining the demurrer to the third paragraph of their answer. The objections urged against each paragraph of the complaint are: (1) That said paragraphs should have exhibited a
“Know all men by these presents: That we, J. A. Farabee and J. L. Berry as principals, of the town of Jasonville, county of Greene,*68 State of Indiana, are held and firmly bound unto Lewis Township by its trustee Elihu Puckett of the County of Clay, State of Indiana, as well as to all persons who may become entitled to -liens, compensation for labor, or material under the within contract in the sum of seven thousand and three hundred fifty-six ($7,356.00) dollars lawful money of the United States of America' to be paid to the said township of Lewis by its trustee Elihu Puckett, and to said parties who may be entitled to. liens, compensation for labor or material, their executors, administrators or assigns for which payment well and truly to be made we bind ourselves, one and each of our heirs, executors, and administrators jointly and severally firmly by these presents. Sealed with our seals, dated this the 12th day of July, 1911. The condition of this obligation is such, that if the above bounden J. A. Farabee and J. L. Berry, their executors, administrators or assigns, in all things stand to and abide by and well and truly keep and perform the covenants in within contract entered into by and between the J. A. Farabee and J. L. Berry and the said Lewis Township by its trustee Elihu Puckett, dated on the 12th day of July, 1911, for the construction of the work or works on the lot mentioned in the within contract and shall duly and promptly pay and discharge all indebtedness that may be incurred by the said J. A. Farabee and J. L. Berry in carrying out the said contract and complete the same free of all mechanics liens and shall truly perform the covenants in said contract and in the within instrument contained on their part to be kept and performed at the time and in the manner and form therein specified as well as of all costs, including attorneys' fees in enforcing the payment and collection of any and all indebtedness incurred by said J. A. Farabee and J. L. Berry or any subcontractor or agent in carry*69 ing out the said contract then the above obligation shall be void, else to remain in full force and virtue. This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law in such eases made and provided and may be sued upon by them as if executed to them in proper person * * *.”
Section 368 Burns 1914, §362 R. S. 1881, provides that: “When any pleading is founded on a written instrument or on account the original, or a .copy thereof, must be filed with the pleading.” Judge Hogate in his work, 1 Hogate, Pleading and Practice, §412, in discussing this statute, says: “It is not every written instrument that may become available as evidence, or otherwise, that is such within the meaning of the statute. Pleaders often incorporate into the pleadings, as exhibits that which does not constitute the foundation of the action; and it becomes frequently a question as to what written instrument is or is not the foundation of an action. An examination of all the decided cases will not enable one to deduce a rule that will be invariable. Perhaps as near a rule as can be stated is that where the party to be charged has signed the* instrument that, is declared on, in such case the instrument or a copy must be filed as an exhibit.”
Unless the contract in question can be said to be the foundation of appellee’s complaint, it was not necessary to exhibit it or a copy thereof. Instruments which are merely to be used as evidence do not generally fall within the statute. 31 Cye 556. Appellants rely upon the case of Potts v. Hartman (1885), 101 Ind. 359, to support their contention that the contract should have been made a part of
In the case of Federal Life Ins. Co. v. Kerr (1910), 173 Ind. 613, 617, 89 N. E. 398, 91 N. E. 230, the Supreme Court in discussing this question said: “The sufficiency of the complaint is vigorously challenged, on the ground that the transfer and the so-called reinsurance contract are so referred to in the agreement denominated the new policy as to become a part of it, to the extent that it must be made an exhibit of the. complaint under our code, requiring written instruments, or copies thereof, upon which ‘any pleading is founded’, to be filed with the pleading. There are two distinct lines of cases in this State involved in this contention. One line holds that where one instrument refers to another which is necessary to its construction, or defines the conditions of rights claimed under it, or depends for its validity upon conditions expressed in another instrument, said instruments, when made the basis of a pleading, must be set out by copy or in the original. (Citing authorities.) Another line of eases is that presented under building contracts, building and loan association notes, and contracts of insurance, under which it is held that collateral instruments referred to in the instrument pleaded, or as inducements to contracts or agreements, which, though referring to other instruments, are complete in themselves, need not be copied, filed or exhibited. Of such are applications for insurance, specifications for buildings and machinery, and the like.”
The special finding follows the facts alleged in the second paragraph of complaint, and our ruling on said paragraph requires us to hold that the court did not err in its first conclusion of law, which was to the effect that appellee was entitled to recover of the bondsmen jointly and severally the sum of $249.28. Ross v. Van Natta (1905), 164 Ind. 557, 74 N. E. 10.
If it were necessary to file notice of claim with the trustee in a ease of the character here under consideration, which we do not decide, the second-paragraph . of complaint and the finding of facts made by the court show that the statute (§590lb Burns 1914, supra), was complied with in that respect.
The conclusion of law complained of was clearly right on the special finding of the court. Judgment affirmed.
Note. — Reported in 112 N. E. 532..