104 Ind. 84 | Ind. | 1885
Action by Jacob Fisher against Squire J. Hinkle for damages alleged to have resulted from the nonperformance of -a parol contract. A demurrer having been first overruled, a jury returned a verdict for the plaintiff, assessing his damages at $65, and judgment followed upon the verdict.
The only question presented upon this appeal is, did the circuit court err in overruling the demurrer to the complaint?
The complaint charged that in March, 1882, the board of commissioners of the county of Randolph, in this State, upon the petition of the defendant Hinkle and others, made and entered of record an order for the construction of a free, gravel and turnpike road, in said county, upon a certain route, particularly specified in such order; that the defendant was the owner of a farm, containing about seventy acres of land, upon the proposed line of such gravel and turnpike road, which would be greatly improved by the construction of such road; that consequently said road when completed would constitute a work of great pecuniary value to the defendant, all of which was well known to the defendant; that thereafter, by proper advertisements, bids were invited for the construction of such gravel and turnpike road; that thereupon the defendant, in the form of a bid, proposed to construct section twelve (12) of such road for the sum of $696.36; that inasmuch as there had been no bids for some parts of the proposed line of road, it was agreed between all interested that the entire line should be readvertised for bids, with the understanding that' in certain contingencies the bids made and
The objection urged to the sufficiency of the complaint is, that the contract counted upon was void: First. Because by its terms it was not necessarily to be performed within a year from the time at which it was entered into. Secondly. Because the amount involved in the contract was presumably more than fifty dollars, and nothing was given or done at the time the contract was made to take it out of the statute declaring contracts involving fifty dollars or more to be void in certain cases, citing the 5th subdivision of section 4904 and section 4910, R. S. 1881.
As responsive to the first objection urged as above, it may be said that we have a long line of cases holding, and we have no doubt correctly, that it must affirmatively appear by the terms of a contract, that its stipulations are not to be performed within a year after the time of making such contract, in order to bring it within the provisions of the 5th subdivision of section 4904, and as nothing to that effect was affirmatively shown by the terms of the contract set out and sued on in this case, the first objection to its validity can not be sustained. Wiggins v. Keizer, 6 Ind. 252 ; Houghton v. Houghton, 14 Ind. 505; Haugh v. Blythe, 20 Ind. 24; Marley v. Noblett, 42 Ind. 85; Baynes v. Chastain, 68 Ind. 376 ; Hunt v. Elliott, 80 Ind. 245 (41 Am. R. 794); Wolhe v. Fleming, 103 Ind. 105.
The second objection to the validity of the contract before us is equally untenable.
In the first place, section 4910, cited and relied upon by counsel, has reference to the sale of goods, the price of which amounts to fifty dollars or more. As there was no sale of property involved in the contract here in controversy, the section of the statute so cited and relied upon has no application to such a contract. In the next place, full performance of the contract in suit was averred in the complaint, and that was, in any event, sufficient to take the present case out of
The judgment is affirmed, with costs.