174 Ind. 1 | Ind. | 1909
Lead Opinion
Appellees James J. Brennan and Arthur B. Hogue, as plaintiffs below, commenced this suit to recover a money judgment and to enforce a lien against appellant Indianapolis Northern Traction Company which is alleged to be a railroad company duly incorporated and organized under the laws of this State for the purpose of constructing and operating an electric railroad extending from the city of Indianapolis, through several intervening counties, to the city of Peru, with certain lateral lines extending from the city of Kokomo, Howard county, to the city of Logansport, Cass county, and also for constructing and operating other electric traction lines from the city of Anderson, and embracing a series of other cities and towns, as mentioned in the amended complaint filed by the aforesaid parties.
The complaint is based on a working contract executed by the Indianapolis Northern Traction Company and the firm of Brennan & Nelson, contractors. By this contract that firm agreed to install and to complete what is denom
It will lie noted that the suit was in two branches — one branch based on the complaint of Brennan & Hogue and the other founded upon the cross-complaint of Bick. Under the issues joined the two branches were tried together. The cause was submitted to the court for trial and a general finding was made, there being no request by either party for a special finding. Upon evidence given in the cause, the court found that appellees Brennan & Hogue should recover upon their complaint against the Indianapolis Northern Traction Company the sum of $5,044.88, and further found that they were entitled to be allowed the sum of $1,200 for attorney’s fees — in the aggregate $6,244.88, and that this amount was a lien upon the property described in the complaint, and a foreclosure of the lien was decreed. On the issues joined upon the cross-complaint of appellee Bick, the court found that said cross-complainant was entitled to recover from the Indianapolis Northern Traction Company the sum of $57,969.02, together with attorneys’ fees, making a total amount of $61,969.02. Of the total amount awarded in favor of Bick, the court found that he was entitled to hold and enfroce a lien to the amount of only $52,539.34 upon the property described in the cross-complaint, and that he was entitled to a foreclosure in payment of said sum of $52,539.34, but denied his right to a lien upon the remainder’, $9,429.68. Over a separate motion for a new trial by the Indianapolis Northern Traction Company, wherein it assigned statutory grounds and other reasons, the court entered its decree against said traction company in favor of the respective appellees. To review this decree appellants prosecute this appeal. The Indianapolis Northern Traction
The two branches of the case herein may be said to present two questions in common with each other: (1) Whether, under the statute of the State of Indiana, appellees Brennan & Hogue and Bick could acquire any lien upon appellant company’s electric railroad. (2) Whether we will yield to the contention of counsel for said appellant, and weigh conflicting evidence given at the trial upon the issues tendered in each branch of the case.
We here state, in substance, what is averred in the three paragraphs of the amended complaint of Brennan & Hogue on which their branch of the case was tried. The first paragraph discloses that, in order for said contractors successfully to prosecute the work undertaken by them, it was necessary that the railroad company should have all poles and overhead material on hand ready for use and the grade prepared not later than March, 1903; that immediately after entering upon the performance of their contract these plaintiffs arranged to begin work on or before the aforesaid month of March, and so notified the company; that the latter did not however have its poles, grades and other material in condition for said contractors to proceed until about the first of May, 1903, at which time they were notified to have their men at work on the job; that although said contractors complied promptly with the request of the company to begin work, they were constantly impeded, hindered and interfered with in the performance of their contract by reason of the failure of the company to furnish the necessary poles and materials at the storehouse agreed upon, and by reason of the facts that the grade was not finished and that the company’s engineer capriciously required the work to be reconstructed after it had been completed in a proper manner; that because of the incomplete condition of the grade, absence of stakes, and other alleged failures on the part of the traction company to put its property in condi
An additional amount of $5,000 damages is shown as resulting from the delay of the company in failing to have the material on hand, etc., whereby the cost of the work actually done, in the completion of the overhead construction, was increased to the latter amount. Judgment against the Indianapolis Northern Traction Company was demanded in the sum of $15,000, including attorneys’ fees, and a foreclosure of the lien in question.
The second paragraph of the complaint alleges substantially the same facts as the first, but does not count upon a mechanic’s lien.
The third paragraph is based upon a quantum meruit, alleging the performance of certain work and the construction of the overhead system, as shown by a bill of particulars filed, and that there is still due to the plaintiffs for this work $9,000, in addition to $2,000 attorneys’ fees. A foreclosure of the lien against the property is prayed for, as in the first paragraph of the complaint.
The three paragraphs of the cross-complaint of Bick may be summarized as follows: The first is based on the working contract of December 6, 1902. Among other things, it is averred that it was stipulated in the contract that the work in question should commence on or before the first week in March, 1903, and should be completed on or before the first day of July of the same year. It was provided that if there should be any delay on account of the failure of the traction company to procure all necessary rights of way, said contractor should have a reasonable time to complete the work
It is further shown that notice of said cross-complainant’s intention to hold a lien upon the railroad in the several counties mentioned was filed in the manner and at the places prescribed by the statute. The prayer is for judgment against the traction company in the sum of $75,000 and a foreclosure of the lien.
The second paragraph of the cross-complaint relies upon the same contract and is similar to the first, except that it
The third paragraph of the cross-complaint recites the history of the traction company’s organization substantially as in the other paragraphs, but is founded upon the contract of March 1, 1903, which is denominated contract number two. This contract embraces certain grade construction of appellant’s road in Hamilton county, and it is averred that by its terms the cross-complainant, as contractor, agreed to furnish all the materials, except that used for bridges, and to prepare the grade for the construction; that he was to receive twenty cents a cubic yard for all earth excavated between certain stations therein mentioned, and thirty-two and one-half cents for the earth excavated between certain other stations therein named; that, in case it became necessary to haul the earth or other material excavated more than five hundred feet, then said contractor was to receive the additional sum of one cent a cubic yard for each one hundred feet such material was hauled in excess of five hundred feet ; that he was to receive $20 an acre for grubbing, and that for all tile he was to receive the prices thereiu named; that it was stipulated in this contract that the work was to be begun within fifteen days from the date of notice of the chief engineer, and ivas to be completed on or before July 1, 1903, provided, that if there was any delay due to the failure of the traction company to procure necessary rights of way in time for the performance of the work the period should be extended a reasonable time after such rights of way were procured. It is further alleged that such contractor commenced his work at the proper time, and prosecuted it vigorously, but, by reason of the numerous delays by the traction company, he was unable to complete such work before January 1, 1901, at which time such work was completed and accepted by the company; that in the necessary completion thereof he was required to, and did,
“An act concerning liens of mechanics, laborers, and materialmen. ’ ’
Section twelve of said act, as originally enacted, declares that “all persons, who by contract with any railroad corporation * * * shall perform labor or furnish material for any such corporation, * * * in the way of grading, building embankments, or making excavations for the track of any such railroad corporation, or who shall build or repair bridges or trestle-work for any such railroad corporation, or the lessee thereof, shall have a lien, ’ ’ etc. Said section appears to have been twice amended, once in 1885 (Acts 1885 p. 236) and again in 1889 (Acts 1889 p. 257, §6, §8305 Burns 1908), but there has been no amendment to the title of the statute, and whatever attempts the legislature may have made by subsequent amendments to extend or broaden the provisions of the act, as it was originally enacted, appear to have been made without any change of the original title. This section, as it appears in the amendatory act of 1889 (§8305, supra), upon which appellees seek to base their right to a lien upon the railroad property in question, reads as follows: “All persons who shall perform work or labor in the way of grading, building embankments, making excavations for the track, building bridges,
The question, as raised and presented by counsel for appellants is that the title of the mechanics’ Hen' statute of 1883 is not broad enough, under the constitutional provision to which we have referred, to authorize thereunder legislation providing a Hen in favor of “contractors” who do not personally perform the labor in the construction of a railroad, and that therefore the provisions of §8305, supra, must be limited to persons who themselves actually perform such labor, and that the term “laborers,” as employed in the title, cannot be held to extend to or embrace contractors who undertake the work of building or constructing a railroad. This question, so far as we are able to discover, appears to be raised and presented for the first time in this appeal. Each contract in this case, executed by the railroad company and appellee Biek, reads, in part, as follows:
“This agreement made and concluded * * * by and between J. N. Bick, of the first party, hereinafter called ‘contractor,’ and the Indianapolis Northern Traction Company, of the second party, hereafter called ‘company,’ bears witness as follows: First. The contractor, in consideration of the prices hereinafter agreed to be paid to him by the company, hereby undertakes and agrees to do and perform to the satis*16 faction and acceptance of the chief engineer of the company, all of the grubbing, clearing, grading and to furnish all materials and to do and supply all other things requisite and necessary to complete the roadbed, with the exception of the permanent bridges and masonry, and prepare the same ready for receiving the superstructure upon that portion of the railroad known and designated as section * * . Such work shall be finished in the best and most workmanlike manner and shall be constructed of the best materials of their several kinds, and all in conformity with the annexed specifications and conditions and proposals, which are hereby expressly made a part of this contract. ’ ’
The contract for the overhead construction of appellant company’s road, as entered into between it and Brennan & Nelson, is as follows:
“This agreement made December 15, 1902, between the Indianapolis Northern Traction Company, hereinafter referred to as the ‘company,’ and Brennan & Nelson, hereinafter referred to as ‘contractor,’ witnesseth: The contractor does hereby covenant, promise and agree, for the consideration hereinafter named, to do all work, deliver all materials for erecting, complete in place, the work described, all in accordance with the specifications and drawings referred to herein and hereunto attached, in a proper, thorough and workmanlike manner and under the direction and to the satisfaction of the company’s engineer.”
As shown by these contracts and the evidence in this ease, appellees undertook to perform the construction of the parts of appellant company’s railroad as provided by the contracts, not merely as laborers, but wholly as contractors, the work of such construction being let to them by the railroad company under the aforesaid contracts, such work being performed by persons whom appellees engaged as their employes to carry out their contracts.
In the case of Aikin v. Wasson, supra, the court held that a contractor for the construction of a part of a railroad was not a laborer or servant, within the provisions of the statute
In the case of Wakefield v. Fargo, supra, the court held that a person employed by a corporation at a yearly salary as a bookkeeper and general manager was not a laborer within the provisions of the same statute in New York.
The view entertained by the court of appeals in this latter case is quoted with approval in the case of Raynes v. Kokomo Ladder, etc., Co., supra. The question there was whether appellant, who ivas the general manager of appellee company, was entitled to the lien secured by the provisions of §§7058, 7255 Burns 1894, Acts 1885 p. 36, §3, Acts 1889 p. 257, §1. The court, in considering the provisions of those sections said: “The persons to whom such liens and preference are secured, * * * . are mechanics and laborers employed about any shops, etc., who perform manual and mechanical labor. A general manager is not included either in the letter or spirit of these enactments. In speaking of the kind of services which entitled the laborer to the benefit of a similar statute, it is said in Wakefield v. Fargo [1882], 90 N. Y. 213: 'That he who performs them must bo of a class whose members usually look to the reward of a day’s labor, or service, for immediate or present support, from whom the company does not expect credit, and to whom its future ability to pay is of no consequence.’ ”
The case of Rogers v. Dexter, etc., R. Co., supra, involved the construction of a statute which imposed a liability on the railroad companies to pay for the. work of “laborers” employed in the building of roads of such companies. The court, in that appeal, held that the provisions of this statute did not apply to a subcontractor who personally performed labor along with other men employed by him in the construction of a railroad section which he had contracted to build. The court, in considering the application of the statute, said: “In the language of the business world, a
In the case of Wentroth’s Appeal, supra, the questions arose whether Frederic Snyder, who had pei-formed a certain contract by hiring teams and drivers, but who did no hauling’ himself, ivas a laborer within the meaning of a statute which gave a preference to “miners, mechanics, laborers or clerks for labor or services rendered by them.” The court, in that appeal, held that, within the contemplation of the statute, laborers were those who performed with their own hands the contract they make with their employers. The court, iu passing upon the question, said: “What class of persons was intended to be comprehended by the word ‘laborer’? We think this question has been very accurately answered by this court in Seider’s Appeal [1863], 46 Pa. St. 57. ‘By laborers,’ says Mr. Justice Woodward, in delivering the opinion of the court, ‘we mean those who perform with their own hands the contract they make with the employer. ’ It is clear that Frederic Snyder does not fall within this description. The act meant to favor those who earned then-money by the sweat of their own brows, not those who were mere contractors to have the work done, and whose compensation was the profit they would realize on the transaction.”
Counsel for appellees, however, insist that the liens of their clients can be upheld under the provisions of §8295 Burns 1908, Acts 1899 p. 569, which is section one, as amended, of the original mechanics’ lien act of 1883, supra. But so far as this section can be said to have been enlarged by amendment in the attempt to make it apply to and include contractors, it is open and subject to the same constitutional objections. We conclude, for the reasons stated, that appellees are not entitled to the lien and attorneys’ fees awarded in their favor by the lower court, and the decree and judgment to this extent are erroneous.
In the case of Parkison v. Thompson (1905), 164 Ind. 609, we construed the act of 1903, supra, and held that in a ease in which questions of fact depend for their support upon conflicting oral evidence, we will not undertake to reconcile the conflict and decide upon which side lies the weight of the evidence. It was further affirmed in that case that, under the old practice, before the same procedure was prescribed in eases of law and equity by our civil code, no oral testimony was heard in equity or chancery cases at the trial, as the testimony in such cases was in the form of depositions taken before a master or some other duly authorized officer. By this procedure the trial court was altogther deprived of the opportunity of seeing the witnesses and of observing their demeanor and bearing while testifying, and occupied no better position for determining the credibility of the witnesses and weighing their evidence than did the Supreme Court, to which the cause might be removed for review of the questions involved. The holding in the case of Parkison v. Thompson, supra, has been followed by this court in the following cases: Hudelson v. Hudelson (1905), 164 Ind. 694; Ray v. Baker (1905), 165 Ind. 74; Seiberling & Co. v. Porter (1905), 165 Ind. 7; Karges Furniture Co. v. Amalgamated, etc., Union (1905), 165 Ind. 421, 2 L. R. A. (N. S.) 788; Tinkle v. Wallace (1906), 167 Ind. 382.
Under the decisions just cited, the rule that this court will not weigh oral testimony wherein there is a substantial conflict, and determine on which side of the question there is a preponderance, is firmly settled. In such eases, if. there is competent evidence to sustain the judgment of the lower court upon all material points, it will not be disturbed upon the weight of the evidence.
The evidence shows that the valley of-the Wabash river, in Miami county, is enclosed with high banks, dividing the uplands from the lowlands. These banks at irregular intervals are cut by streams flowing from above into the river. Appellants’ engineers, in locating the line of the railway in this part of the country, for several miles followed ravines and located the line diagonally across these ravines, and thereby made it necessary, in the construction of the road, to make cuts through the hills, and fills across the hollows. A long fill appears to have been rendered necessary from the bottom of the hill to the bank of the river opposite the city of Peru. The purpose of so locating the road apparently was to get a lower grade than otherwise could be secured. Appellee Biek, as a contractor, did the grading of over twenty miles of the road. A portion of the work which he performed was between Kokomo and Peru, in Howard and Miami counties. The other portion of the grading was in Tipton and Hamilton counties. For the purpose of carrying forward the work, said appellee organized a corps of men and teams and entered upon the work in the spring of 1902. As the work progressed he increased his force by adding thereto other employes and teams. At times it appears that he was delayed in the progress of his work by the failure of appellant company to provide the rights of way, the one immediately north of Kokomo not being secured until the beginning of the following winter, and said contractor was then directed by the company to do his work immediately, in order that the track of the road might be laid. Said appellee, it appears, was delayed by the failures of appellant company until cold weather, which froze the ground so hard that' it could not be excavated by plowing. The surface of the earth north of Kokomo is black loam, and on account of its being frozen it became necessary to break it
“all material excavated by the contractor under this contract shall be classified either as earth, loose rock*28 or solid rock, and the-chief engineer of the company shall determine how the excavated material shall he classified. In cases of dispute his finding and decision in the premises shall be conclusive on both parties.”
One of the clauses in the specifications provides as follows:
“There shall be no classification of material of any kind other than earth, loose or solid rock, as provided for in these specifications. * * # But this clause of the specifications shall not, be construed so as to prevent the application of a percentage system in classifying material as provided in clause two hereof.”
We find nothing in the contract or the specifications which stipulates specifically what shall be classified as earth. Clause two of the specifications provides as follows:
“Loose rock shall comprise: Hard shale or soapstone lying in its original or stratified position, coarse boulders in gravel, cemented gravel, hardpan, other material requiring, in the judgment of the chief engineer of the company, the use of the pick and bar, or which cannot be plowed with a strong ten-inch grading plow, well handled, and drawn by six good mules or horses. It is to be understood that the plowing test shall apply to all the materials named herein, and that only such material is entirely loose rock which, in the judgment of the chief engineer, it is impracticable to plow at all with a strong ten-inch grading plow, well handled, behind a good six-mule or -horse team. Any material in which a portion of a day’s work in plowing can be done with a strong ten-inch grading plow, well handled, behind a good six-mule or -horse team, will be classified as a percentage of earth and a percentage of loose rock, the amount of such percentage to be finally determined by the chief engineer of the company. ’ ’
The further contention of appellants’ counsel is that the provisions of clause two of the specifications are shown by the evidence not to have been properly construed or interpreted by the trial court, or in other Avords, the contention is advanced that the interpretation accorded to this clause by the company’s chief engineer in classifying the material excavated Avas correct, while, on the other hand, the interpre
The provisions of clause two of the specifications, stipulating of what loose rock shall consist, may be divided as follows :
“Loose rock shall comprise: (1) Hard shale or soapstone lying in its original or stratified position; (2) coarse boulders in gravel; (8) cemented gravel; (4) hardpan;. (5) any other material requiring, in the judgment of the chief engineer of the company, the use of the pick and bar; (6) material which cannot be plowed with a strong ten-inch grading plow, well handled, and drawn by six mules or horses; (7) it is*30 to be understood that the plowing test shall apply to all material named herein, and that only such material is entirely loose rock which, in the judgment- of the chief engineer, it is impracticable to plow with a strong ten-inch grading plow, well handled behind a good six-mule or -horse team; (8) any material in which a portion of a day’s work in plowing can be done with a strong ten-inch grading plow, well handled, behind a good six-mule or -horse team will be classified as a percentage of earth and a percentage of loose rock, the amount of such percentage to be finally determined by the chief engineer of the company. ’ ’
The following hypothetical question was propounded by appellee Bick’s counsel to S. TI. Knight, the chief engineer of appellant company, who testified in its behalf at the trial: “Assuming, Mr. Knight, that four or five cuts are to be made, varying in length from three hundred to six or seven hundred feet, and varying in depth, say, from fifteen to twenty-seven or twenty-eight feet, and that after the first four feet of the top soil is taken off there is encountered a hard soil or clay, interspersed with rocks or boulders, so that in attempting to plow it every five to ten feet with a heavy ten-inch grading plow, drawn by from four to six heavy horses, the plow is turned out by some boulder, or becomes fast under the boulder, so that when it is fast there is great difficulty in extracting the plow; that in plowing, or attempting to plow, the plow does not enter the ground more than three inches and often less; that a furrow from three to five inches wide is turned up, two men riding on the whiffletree, some times one man in addition on the plow-beam, some times one man holding the plow handle, and some times two, the dirt hauled off by wheelers, which are very often being tripped bys boulders which are being developed by the plowing, heavy boulders so large that they have to be blown out with dynamite and hauled off by chain, they being so large that a team cannot snake them, but they have to be rolled with a rolling hitch; three or four fur
The following hypothetical question was also propounded to him: “Assuming that after the yellow clay is taken off, several feet of it, that there was encountered a blue clay a little harder than the yellow, but with comparatively few boulders and stones, and that it was excavated in the same way I have detailed [meaning as detailed in the previous question], except it was not necessary to use dynamite or to pick out the boulders, what would you say as to whether or not any portion cf that blue clay should be classified as loose rock, under the specifications?” The answer of this witness was: “I would not.”
There is evidence iu the record to establish the facts stated in these questions and therein assumed to be true, and that material excavated, as therein stated, was classified by the engineer entirely as earth. Counsel for appellee Bick claim (1) that his answers to the questions quoted clearly show that he placed a wrong legal construction upon the provisions of clause two of the specifications hereinbefore set out; (2) that his answers to the questions disclose that upon the subject of classifications he was so prejudiced against appellee Bick and in favor of appellant company, his employer, and of which he was a stockholder, that he was not a fit person to settle the question of classification.
The rule generally affirmed by the authorities is that the measurements, estimates and classification of material, in cases where they are left to the judgment or decision of the engineer, are accepted as prima facie correct, and to that extent are binding upon the parties to the contract, in the absence of fraud, or gross or obvious mistake on the part of such engineer, and the burden is upon the party who assails them to establish such fraud or mistake. McCoy v. Able, supra; 3 Elliott, Railroads §1059.
“it is to be understood that the plowing test shall apply to all material herein named, ’ ’
modifies or destroys the classification of material immediately preceding, as specified under clauses one, two, three and four, or, in other words, that while the provision of the specification by which the contracting parties expressly agreed that “hardpan,” and “coarse boulders in gravel,” should be classified as loose rock, nevertheless it was intended that such material was subject to the plowing test provided for by clause six. The provisions of the specification must be construed together and given a reasonable interpretation, and they should not be construed in such a manner as to lead to absurdity.
We may assume that appellant company and appellee Biek, in entering into the contract, recognized that the materials specified in the first, second, third and fourth clauses were well-known, hard substances, quite difficult to excavate, therefore they mutually declared that they should be classified as loose rock. Doubtless the parties believed that other hard material might be developed in excavating, and therefore the pick and bar test and the plowing test were provided for other hard earth not specifically falling within that mentioned in the preceding clauses.
In the case of Lewis v. Chicago, etc., R. Co., supra, the specification involved was as follows: “Loose rock shall comprise (1) shale or soapstone lying in its original or straified position, coarse boulders in gravel, cemented gravel, hardpan, or any other material requiring the use of pick and bar, or which cannot be plowed with a strong, ten-inch grading plow, well handled, behind a good six-mule or -horse team.” It will be observed that this is virtually the same as the one with which we have to deal. It appears in that case that, as the engineers construed the specification, “shale, cemented gravel, hardpan,” etc., were not classified as loose rock unless more than six horses or mules were required to plow such material. The court in that ease, in determining whether the engineers had properly construed the specification, said: “After an attentive consideration of the question, the court concludes that the engineers put a wrong construction on the second clause of the specification,
In the case of Williams v. Chicago, etc., R. Co., supra, identically the same specification was involved as in the ease of Lewis v. Chicago, etc., R. Co., supra. In the ease first cited the plaintiffs claimed and offered to show that the engineer had construed hardpan to be loose rock only “when it could not be plowed with a strong ten-inch plow, behind a good six-horse or -mule team.” The plaintiffs further contended that under this clause of the contract the classification of hardpan as loose rock was fixed without any reference to the plowing test. The court sustained this contention, saying on page 493: “We think the plaintiffs are correct in their interpretation of the clause, and, if the engineer did so miscontrue it, he exceeded the power vested
The interpretation of the term "loose rock,” as used in the specification in question, for which appellee Bick contends, is manifested by the statements of facts in the hypothetical question propounded to the chief engineer. Appellants’ counsel, however, deny that said appellee’s contention in respect to the construction is correct within the meaning of the contract, but affirm that the one accorded to it by the chief engineer is right. The infirmity of the interpretation placed upon the specification by appellant company’s engineer is that it accords with neither the letter nor spirit of the contract. We have, we believe, sufficiently shown that the engineer was wrong’ in the construction which he accorded to the specification as to how the material mentioned in the hypothetical question should be classified. In addition to this we may say that the provision, "any other material * * * which cannot be plowed, ’ ’ must be construed to mean such hard material or substance as cannot be plowed with reasonable facility. The term "plowed” was certainly used in its usual meaning, and must have been so understood by the parties. They did not mean the mere "rooting up” of the material, or cutting a very shallow furrow, or such plowing as would require men to ride upon the whiffletree and upon the plowbeam in order to keep the nose of the plow in the material which they were attempting to plow. It is not tenable to argue that plowing, within the
Appellee Bick’s testimony was supported by many other witnesses. Because he employed the plow as the most feasible and available method of loosening and breaking up the material in controversy, certainly affords appellant company no room for insisting that such material should be classified entirely as earth, to be paid for at twenty cents a cubic yard, mainly for the reason that the excavation thereof was principally done with a plow as the most feasible, practicable and the cheapest method, as the evidence fully establishes. What appellee did in this respect could not be said to be plowing, brrt merely, in common parlance, “rooting out” the boulders and breaking up the hard substances with a strong grading plow which -was used.
Counsel for appellee Bick examined many witnesses upon the trial of the cause, some of whom were expert civil engineers. The evidence given by the men employed in excavating and grading appellant company’s railroad shows that much of the material developed in some of the several cuts was hardpan, and that other parts thereof, to quite an extent, were intermingled with large and small boulders. The material encountered in the attempt to plow was so hard that some times the plow points would last only two or three hours. One witness testified that the material was so hard that he could not drive a harrow tooth down through it; that in his attempt to do so the tooth was bent, although it did not strike any boulder or rock. Others testified that dynamite was employed to break up the material, without much
It is not necessary that we give the evidence in detail upon the many points in dispute before the trial court, for to do so would, under the circumstances, serve no useful purpose. Suffice to say that the evidence, as we find it in the record, is ample to sustain the allegations of appellee Bick’s cross-complaint, and the finding and judgment of the lower court upon all material points. In fact, it may be said that had the court given full credit to the testimony of said appellee it would have been justified in awarding a recovery in his favor of a much larger amount than it found was due to him. As heretofore shown, the contention of appellant company’s counsel, that the lower court erred, upon the ground that it did not adopt the construction of the contract for which they contend, even if true, cannot be sustained. It does not appear that during the progress of the work there was any substantial dispute on the part of said appellant’s engineer in regard to the estimates and classification of the material to which said appellee was entitled. Instead of making estimates and classifications, which, as shown, said appellee frequently requested should be made, the engineer merely promised to do so, but failed to carry out his promise. The controversy appears to have arisen after said appellee had completed the work and turned it over to appellant company. It appears that he was anxious that estimates and classifications should be made by the company’s engineer in order that he might know what
He testified that he asked Mr. Knight, the chief engineer, about making estimates and classifications of material excavated, saying to him that he thought the matter ought to be settled so far as the work had progressed, stating to the engineer that the estimates which had been made were “rather shy.” The engineer, in reply to this, as shown by said appellee’s testimony, said: “Mr. Bick, my monthly statements are to a certain extent guesses; they are approximates only. When you get through with your work you will have every yard and every yard of overhaul and your proper classification, so don’t worry about them; I am going to treat you right.” Appellee Bick also appealed to the assistant engineer, who told him that there was a mistake in the overhaul, and that he would make it right next month, and he also promised to see that a detailed statement of the estimates should be furnished to said appellee, but this promise was not carried out. Said appellee testified that he also had a conversation with Mr. Drum, the general manager, in August or September before the work was completed, and informed him that he was getting “pretty rough treatment” as to estimates. Appellee Bick testified: “I told him my judgment was that I was not getting my yardage, and when was I to get my overhaul up to that time ? They had practically allowed me nothing, only a trifle on classification. That I needed the money; that they ought to give it to me; that he ought not to hold it until the job was done; that I ought to receive it as we went along.” The general manager said in reply to this: “Mr. Bick, these engineers are narrow. It is hard to get a good man. You will come out all right when you get through.”
It follows from the conclusions which we have herein reached that the judgment below must be in part reversed and in part affirmed. It is therefore ordered that all that part thereof which adjudges and awards a statutory lien in favor of the respective appellees and attorneys ’ fees thereon, and a foreclosure of such lien, be reversed, with instructions to the lower court, on motion of appellants, to modify the judgment or decree to that extent. In all other respects the judgment is affirmed.
Rehearing
On Petition for Rehearing.
Appellants separately petitioned for a rehearing, on the grounds (1) that each of them was entitled to a trial by jury in the lower court; (2) that their right to a jury trial was not waived. Appellee Bick has also petitioned for a rehearing of this case, so far as may be necessary for the court to amend and modify its judgment and thereby fully sustain and affirm the judgment and decree of the Howard Circuit Court. He claims that if he is not entitled to a lien as a contractor under the act of 1883, that his right thereto is saved and awarded to him by virtue
Other attorneys, on behalf of parties interested in like cases, in upholding their right to a lien as contractors, in briefs filed herein, criticize the decision as not being supported by the authorities cited, etc.
In the case of Madison, etc., R. Co. v. Whiteneck, supra. this court said: “ If a party voluntarily abstains from claiming the right [of trial by jury] in a given case, we think it may be judicially held that it is waived. ’ ’
We quote from the syllabus in the following cases: Jarboe v. Severin, supra: “Where a party does not ask for a trial by jury, nor object to a trial of the cause by the court, with the jury as advisory merely, it is too late to object on appeal
In the case of Boonville Nat. Bank v. Blakey, supra, this court, after considering the manner by which a jury may be waived, as provided by §576, supra, on page 448, said: “While it does not admit of doubt that there may be an implied waiver of the right of a jury trial, yet such waiver will not be predicated upon a doubtful implication. ’ ’ Or, in other words, where the waiver is predicated upon implication, the intention of the party to waive his right to a jury should be clearly manifested.
In the case of Goodwin v. Hedrick (1865), 24 Ind. 121, this court held that an agreement to refer a cause to a referee for hearing was totally inconsistent with a submission to a jury, and was, therefore, a waiver of a jury trial. See, also, Taylor v. Trustees, etc. (1893), 7 Ind. App. 388; Whitestown Milling Co. v. Zahn (1894), 9 Ind. App. 270.
In the case of Hauser v. Roth (1871), 37 Ind. 89, the appellant was present in court by his counsel when the cause was ordered to be referred to a master in chancery to find the facts and report his finding to the court. Appellant in that ease was ordered by the court to furnish the master with a bill of particulars, and with this order he complied. He was also present in court by counsel when the master filed his report, which was ordered to be spread of record. The appellant, as it appears, in that appeal, interposed no objections to the referring of the cause to a master, and made no objections to the court’s order at any stage of the proceedings. After the filing of the master’s report, containing the finding, appellant then demanded a trial by jury, but his demand was overruled, to which ruling he excepted. In reviewing the question, on appeal, as to whether he had waived his right to a trial by jury, under the facts in that
The decision in the case just quoted from, upon the question involved, is quite applicable to the one in the case now before us. Appellants, at the time this cause is shown to have been submitted to the court for trial, without the intervention of a jury, were present in court by counsel, and, as nothing to the contrary appears, it must be presumed that the entry of record in respect to the submission of the cause to the court was predicated upon the oral consent of appellants and appellees, and thereby falls within the third mode prescribed by §576, supra, and must be held as an express waiver of a jury trial by appellants and appellees; consequently appellants cannot be heard to say that they were in any manner denied the right to a trial by jury. It is a well-settled rule, recognized by our decisions, that where a
The decision in the case of Shaw v. Kent (1858), 11 Ind. 80, so far as it can be said to hold that a trial by jury can only be waived by a party by some one of the modes prescribed by §576, supra, is inconsistent with the holding of this court in its many decisions to which we have referred, and upon this point the case of Shaw v. Kent, supra, has been, at least impliedly, overruled, and no longer can be considered as an authority.
The act of 1873, supra, is entitled: “An act to give security to persons who contract with railroad corporations
It follows that each of the petitions of appellants and the petition of appellee Bick for a rehearing should be overruled, which is accordingly ordered.
On Motions to Retax Costs.
After the decision in this appeal, the clerk of this court appears to have taxed all the costs against appellees. Appellee Bick, in his own behalf and in behalf of his eoappellees, has filed a motion to retax costs therein, requesting the court to order the costs accruing by reason
As shown in the opinion given on the original hearing, there were two branches of this cause in the lower court, one made and maintained by appellees Hogue & Brennan under their complaint, and the other by appellee Biek under his cross-complaint, upon which he recovered the judgment in his favor. Each of these branches upon appeal presented in common the right of appellees respectively to have and enforce a lien under the act of 1883 (Acts 1883 p. 140). In considering the motion to retax costs, the judgment of the lower court may be separated into two parts, one awarding a recovery of money in favor of appellees Hogue & Brennan on their complaint, a foreclosure of the lien set up in their complaint, and attorneys’ fees thereon; the other part awarding a recovery of money in favor of appellee Bick, and a foreclosure of the lien claimed by him upon his cross-complaint, and attorneys’ fees thereon. The pleadings in each branch of the case appear to have been made up jointly, but each branch appears to have been tried separately. The bill of exceptions containing the evidence given upon the trial of the issues between appellants and appellees Hogue & Brennan begins on page 333, volume one, of the bill, and continues to page 1381, volume two. The evidence given upon the trial between Bick and appellants begins on page 1381, volume two, of the bill of exceptions, and embraces the remainder of that volume and all of volumes three and four. All that part of the judgment of the lower court which awarded the recovery of money, other than attorneys’ fees, in favor of Hogue &¡
Section 706 Burns 1908, §664 R. S. 1881, prescribes a general rule for awarding costs in cases on appeal. This section provides: “When the judgment is affirmed in whole, the appellee shall recover costs; and when the judgment is reversed in whole, the appellant shall recover costs in the Supreme Court and the court below, to the time of the first error for which the judgment is reversed, which shall be pointed out in the opinion of the Supreme Court. In all other cases, costs shall be awarded as the court may deem right, following, as nearly as possible, the general regulation for awarding costs.”
We therefore order (1) that the costs accruing by reason of the appeal taken by appellants, except those accruing upon their petitions for a rehearing, and also except that made on account of bringing up the evidence, be taxed to and paid by appellees; (2) that all costs made and accruing by reason of the bill or bills of exceptions embracing the evidence given upon the trial be taxed to and paid by appellants.
It appears from the records in the office of the clerk of this court that there has been taxed by that officer, as costs against appellees in this appeal, the sum of $1,010.93 paid by appellant company to the Federal Union Surety Company as a premium for its becoming the surety of said appellant on its appeal bond executed in the prosecution of the appeal.
Appellees have filed a motion to strike out this item of cost (1) for the reason that they are not liable to pay such costs; (2) that there is no legal warrant for taxing as costs against appellees the money paid by appellant company as a premium to said surety company.
Counsel for appellees contend that the portion of this section italicized is invalid or void, for the reason that it violates article 4, §19, of the Constitution, it being a matter not within the scope of the title, nor properly connected with nor germane to the subject expressed in the title of the act. We are of the opinion that this contention of appellees must prevail. Said section of the state Constitution provides as follows: ‘ ‘ Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” A reading of the title of this act fully discloses that the subject thereof as expressed in the title is, “the incorporation of bonding or surety companies.”
It is evident, we think, that, under this general subject, the provision in the body of the act, awarding to a party litigant in all actions or proceedings wherein such party is entitled to recover costs the right to recover, as a part of his costs against his adversary, the amount paid by him to such corporation as a compensation for becoming his surety on his appeal bond, or other bond or obligation given by him in such actions or proceedings, is not a matter germane to, nor within the scope of, such title, nor one which can be said to have a logical connection with the legislation thereunder. A reading of this title induces one to conclude that the various provisions of the legislation proposed will relate alone to and deal with the incorporation of bonding or surety companies, and with the powers, rights and duties of such companies and the officers thereof. A person reading the title would not expect to find in the body of the act a provision relating to or regulating the recovery of costs in actions or proceedings in court.
The conclusion must follow that the provision in question relates to a subject in no manner expressed in the title, and that it can have no logical or natural connection with the subject of the legislation as expressed in the title. The following authorities fully support our conclusion: State v. Young (1874), 47 Ind. 150; Hingle v. State (1865), 24 Ind. 28; Grubbs v. State (1865), 24 Ind. 295; Henderson v. London, etc., Ins. Co. (1893), 135 Ind. 23, 41 Am. St. 410; Mewherter v. Price (1858), 11 Ind. 199; State, ex rel., v. Commercial Ins. Co. (1902), 158 Ind. 680; State v. Bowers (1860), 14 Ind. 195; State, ex rel., v. Board, etc. (1906), 166 Ind. 162.
For the reasons which we have herein advanced, we hold that under the title of the act in question the insertion in §5761, supra, of the provisions italicized was in violation of article 4, §19, of the state Constitution, and therefore said provisions are void and of no avail to appellants.
The motion to retax is sustained at appellants’ cost, and the clerk of this court is ordered to strike out and eliminate said item of $1,010.93 from the costs taxed in this cause.
