7 Ind. App. 625 | Ind. Ct. App. | 1893
The appellant sued the appellees for damages resulting from the failure of appellees to award the appellant the contract for constructing a gravel road under section 5095, R. S. 1881, he being the lowest and best bidder. In the complaint, which was in two paragraphs, it is sought to hold the county as such, and the commissioners, and the engineer, and superintendent, as individuals, liable to the plaintiff in damages for. failure in the performance of official duties. The successful bidders are also made defendants to the action. It is aver
Separate demurrers were addressed by the appellees, as individuals, and by the commissioners, in their corporate capacity, to each paragraph of the complaint, and sustained, and judgment was rendered on the demurrers.
In respect to the questions to be considered, there is no essential difference between the two paragraphs of complaint. The controlling question presented is, whether, under the statute cited, the appellees could, in any event, render themselves liable to appellant in damages by refusing to accept his bid.
We think it must be held that the appellees, who were the officials upon whom devolved the duty of letting the contract, owed the appellant no duty except such as they owed him in conjunction with other citizens of the community. Doubtless the appellant had some interest in the performance of the duty devolving upon the officers, and that, in a sense, he has sustained some injury from their failure to perform such duty, but this interest and this injury were but indirect and remote, and not such as give him a personal right of action for damages for failure to perform. Possibly the officers whose duty it was to let the contract might have been enjoined from awarding it to the other bidders, or they might have been compelled, by mandate in the proper court, to award
In the case first above cited, Elliott, J., collects the authorities and fully discusses the subject in hand, disapproving Ray ns ford v. Phelps, 43 Mich. 342, an authority relied upon by the appellant in the case at bar, but which seems to be based on the conclusion that by the' particular statute there under consideration the officer owed the plaintiff a special duty. It must be admitted, however, that there is respectable authority in support of the appellant’s position, that an officer is liable to an individual who has sustained an injury by such officer’s malfeasance or neglect, whether the officer owed the individual a special duty or not. See note to Adsit v. Brady, 4 Hill, 60, 40 Am. Dec. 305; 19 Am. and Eng. Ency. of Law, 484, note.
We believe the weight of authority, however, to be in support of our conclusion, in which we think we are likewise sustained by the ruling of our own Supreme Court.
Other questions raised are subsidiary to, and necessarily merged in, that already discussed and determined.
Judgment affirmed.
Ross, J., was absent.