Lyons v. Miller

17 Ind. 250 | Ind. | 1861

Worden, J.

On June 10,1859,- Miller and the Board of Commissioners of Greene county entered into a contract, by which MUler agreed “to build a bridge across Eel river, between Worthington and Point Commerce, according to the plan and specifications on file in the auditor’s office in said county.” For which the county was to pay Mi lar “|7,000 in county orders, in the following installments, to-wit: One thousand dollars when the foundations are ready for the stone work to commence; turn thousand dollars when the stone work is six i'eet above low water mark'; two thousand dollars when the stone work is completed ; one thousand dollars when the structure is raised; and one thousand dollars when the bridge is completed.”

Afterward, viz., on December 5, 1859, the Board of Commissioners, at a regular meeting thereof made the following order: “Ordered that the treasurer of Greene county pay John X. Miller, contractor of Ed river bridge, two thousand dollars, it being the third payment on said contract.”

Afterward, Miller applied to the auditor to issue the order for the allowance thus made, who refused, and proceedings were instituted by Miller to compel, by way of mandate, the issuing of the order.

Lyons, the auditor, answered, as the reason of his refusal to issue the county order, “that at the time of the allowing of said order, the abutments and pier of said bridge had been erected; that afterward, to wit: on December 10, and before the issuing of the ox-der on said allowance, the abutment on the east bank of said river, by reason of inartificial construction, fell into the river.” The defendant thereupon, as auditor, deeming that the public interest required it, called a meeting of the county board on December 20, 185Í-), “to take such action as they, as commissionei’s of said county, may think proper and right in relation to the building of Eel river bridge.”

The Board of Commissioners met in pursuance of the call, and, so fax’ as appears, in the absence of Miller, and without notice to him, rescinded the order for the payment to him of the two thousand dollars. The auditor concludes, the allowance having been.rescinded, that he is not bound to issue the order claimed.

A demurrer was sustained to this answer, and final -judgment rendered for the plaintiff. This ruling is the only error complained of.

We are of opinion that the demurrer was correctly sustained. The allowance made by the board was an admission that the work had been done in accordance with the terms of the contract, so as to entitle Miller to the installment thus allowed. The allowance thus made could not, especially in the absence of, and without notice to, Miller, be rescinded. by the board. We regard the order of the board rescinding the allowance as a nullity.

Reliance is had in the brief of counsel for the appellant, on the fact alleged in the answer1, that the abutment, “by reason of inartificial construction, fell into the river.” Even if the auditor could go behind the allowance of the board and set up this fact, there is nothing to show but that the abutment was built in precise accordance with the terms of the contract, viz., “according to the plan and specifications on file in the auditor’s office.” That plan and those ipecifications are not beiore us. They may have been “inartificial,” and the abutment may have fallen in consequence of being built in strict accordance with the plan and specifications.

W. Made, II. C. Rill and I R. Pierce, for the appellant.

Per Curiam. — The judgment below is affirmed, with costs.