41 Ind. App. 627 | Ind. Ct. App. | 1908
Appellee, an incorporated town, sued appellant to recover money that appellant had received from the town for coal furnished and labor performed while appellant was a duly qualified and acting member of the board of trustees of said town. The complaint was in six paragraphs, to each of which appellant filed a demurrer, and each of which demurrers was overruled. . Appellant then filed an answer in general denial. On this issue trial was had by the court, a special finding of facts and conclusions of law thereon, and judgment rendered in favor of appellee against appellant. All the questions discussed aré raised upon the special findings and conclusions of law stated.
The special findings are very specific and voluminous, and we shall only set out such portions as present the questions involved. By it the court found that the town of Lowell was a duly incorporated town; that on May 7, 1901, appellant became a trustee of said town, and continued in that capacity until May 7, 1903; that during his said term he regularly attended the meetings of said board and voted
Finding twenty-one being important, we quote it in full:
The court stated as a conclusion of law that appellee was entitled to recover the amount so received for said coal less the amount of $170 for the coal last mentioned, amounting to $1,192.19, and for drayage amounting to $141.65, aggregating $1,333.84. Proper exceptions were taken to this conclusion of law.
By the facts here presented it is clear that appellant, while a trustee of the town board, did receive money from the town. Money that was paid upon unnumbered and unsworn claims, allowed by the board, of which appellant was a member, and of which, a part of the time, he was president. It is conceded that under §2423 Bums 1908, §2049 R. S. 1881; appellant’s action was illegal, unless the necessities of the case relieved him therefrom. The section, so far as it'applies, is as follows: “Any * * * town trustee * * * who shall, during the time he may occupy
In the case before us appellant made not less than fifty sales aggregating 990,810 pounds of coal to said town during his term of two years. And all of this time said town had a subsisting contract with coal dealers to furnish such coal, and there is no showing that said contacting dealers were not ready and willing fully and promptly to supply said town .upon proper notice. Appellant was a trustee of said town, and as such trustee it was his duty to keep himself informed of the necessities of the town. He knew, or ought to have known, of the dependence of the people upon the constant operation of the water and light plant. He knew -that this plant could not run without fuel, and it was his duty to know the capacity of its coal bins; and, if these bins were not large enough to insure a constant supply, it was his duty, along with the other trustees, to enlarge them to an adequate capacity. In the first two months of his term he made four sales to the town. If these sales were required to prevent the shutting down of the water and light plant, this was certainly sufficient notice to him that their plan of securing coal was inefficient, and imposed upon him and his fellow trustees the duty of taking such steps as would prevent its recurrence. There is no showing that he made any effort whatever to remedy the difficulty, and, at each recurring shortage of fuel, the necessity of more diligent effort to avert the threatened danger should have been borne in upon him. But he did nothing, content to let the shortage occur
We have carefully examined all of the questions presented, since from the finding of the facts it appears that appel
Judgment affirmed.