69 Ind. App. 450 | Ind. Ct. App. | 1919
Under the first assignment, appellant make's the following contentions:
(1) That the evidence wholly fails to show that the contract for the stone, which was signed “G. B. Lynch & Sons,” was in reality the contract of George B. Lynch individually.
As to this point, the trial court evidently regarded substance rather than shadow; and the evidence tends fairly to sustain the averment of the complaint.
(3) That the relator having failed to file its claim with the board of commissioners of Clinton county ■within thirty days after furnishing the stone, there can be no recovery on the bond.
Appellant rests this contention on the act of March 4, 1911, §§5901a, 5901b Burns 1914, Acts 1911 p. 437.
Under the second assignment, appellant contends that, on March 4, 1913, “Lynch & Sons” remitted to the relator by draft $450, which relator applied on its account for stone furnished George B. Lynch for another road which he was constructing, known as the Cherry Grove road; that on May 6,1913, “Lynch & Sons” remitted by check $600, of which $194.12 was applied in payment of the balance due on the Cherry Grove road, and $405.88 on the account for stone used in the Johns road; and that appellant is entitled to have the full amount of these remittances applied on the account which is the basis of this action. In support of this contention, two reasons are given: (1) That the remittances were made by “Lynch & Sons,” and therefore should have been applied on the account of “Lynch & Sons”; and (2) that the remittances represented money received by Lynch from Clinton county on his contract for the construction of the Johns and Pendry roads, and therefore should
Judgment affirmed.