180 Ind. 464 | Ind. | 1913
Appellee sued appellant to recover money paid him on a contract for an examination of the books and accounts of certain public officers of Spencer County. Appellant filed a cross-complaint to recover an additional sum for further accounting work alleged to have been done by him under contract with appellee after that for which he had been paid. Issues were formed upon both the complaint and the cross-complaint, and these issues were tried by the
The substance of the finding of the court is that on September 15, 1906, the county council of Spencer County appropriated $1500 for the purpose of employing an expert to investigate and audit the books, papers and public records of that county; that on June 17, 1907, appellant and appellee entered into a written contract whereby appellant was employed to do the contemplated accounting work for the county. This contract is set out in full in the finding and in substance it provides that appellant was to fully investigate and audit the books, papers and public records beginning with the term of each office next after the general election of 1886 and bringing the examination of the offices of all treasurers and auditors down to July 1, 1907; that after the examination of these two offices was completed, such other offices as might be determined by the board might be examined; that appellant was to employ one expert accountant, familiar with county records, at a salary of ten dollars per day and an assistant at a salary of three dollars per day which sums were to be paid by appellee, and that appellant was himself to give his personal attention to the work three days per week and he was to receive therefor $16.25 per day for each day actually employed upon the records at the courthouse; that if the complete examination of all the officers for the full period of time named should be deemed advisable by the board the cost should not exceed $3,000; that the board reserved the right to stop the inves
The first conclusion of law drawn by the court from these facts as before stated was in appellant’s favor, to the effect that he had performed the original contract and was entitled to retain the $1489.75 paid him thereon.
The second conclusion of law, the correctness of which alone is involved in this appeal, was as follows: “That the contract entered into by said board for the performance of work in investigation and auditing county records and under which the defendant performed the services after the 21st day of October, 1907, is void and the defendant is not entitled to recover thereon.”
Appellee has filed no brief in the cause and makes no defense of the judgment in its favor based on this conclusion of law. And a search of the record on our part discloses none. It seems to have been the trial court’s theory of the law that the contract of October 23, 1907, for a continuation of the examination of the books which had been partly done was void because not in writing and not entered of record.
Under the law as it existed at the time of the transaction under consideration a board of county commissioners had authority to employ expert accountants to make ex-animation of the books and accounts of the county officers and to bind the county for the payment of the service rendered. Duncan v. Board, etc. (1885), 101 Ind. 403; Board, etc. v. Gardner (1900), 155 Ind. 165, 172, 57 N. E. 908; Garrigus v. Board, etc. (1901), 157 Ind. 103, 109, 110, 60 N. E. 948. In the absence of a statute requiring it such a contract would not necessarily be void because not in writing and not spread on the records of the board. McCabe v. Board, etc. (1874), 46 Ind.
Section 6016 Burns 1908, §5766 R. S. 1881, Acts 1879 p. 130, which, relates to allowances by boards of county commissioners, provides among other things that, “if it be found necessary, and so entered of record, to employ any person to render any service as contemplated in this section, as a public necessity, the contract for such employment shall be spread of record in said court.” The contract for the continuation of the investigation here involved was with an individual in no way connected with any of the public offices of the county, to perform duties not required by law of any officer of the county and provided for payment of the services rendered by a specific amount per diem and not by a percentage of, or commission on amounts which might be recovered by the county as a result of appellant’s work. It has been held that such a contract does not come within the provisions of the section requiring the declaration of public necessity and the contract to be entered of record (Board, etc. v. Garrigus, supra, 606), and the contract under consideration was not void for failure to comply with it. Nor can it be said to be void by force of the provisions of §5942 Burns 1908, Acts 1899 p. 343, for lack of an appropriation by the county council, for such an appropriation the facts found by the court show had been made.
The record presented to us indicates that justice would be better served by a reversal and a new trial of the issues joined on appellant’s cross-complaint, than by a restatement of the second conclusion of law, and it is so ordered.