77 Ind. App. 78 | Ind. Ct. App. | 1919
This was an action brought by appellees William H. Turner, et aL, against the appellants and
The amended complaint, with the exhibits thereto, as copied in the record, fills about 100 pages and is entirely too lengthy to be set out in this opinion.
The complaint contains among others, the following averments, in substance: That on January 17, 1914, the said board of works adopted improvement resolution No. 30, 1914, for the improvement of College avenue, said city, from the east line of First street to the west line of Twenty-first street by curbing the uncurbed portions of the sidewalks thereof with oolitic curbing and by grading and paving the roadway thereof with reenforced macadam in accordance with the profile^ details, drawings, and specifications on file in the office of the department of public works of such city, and providing that the cost of said improvement should be assessed upon the real estate abutting on parts and portions of said College avenue to be improved under that resolution, as shown on said drawings and specifications, all according to the method and manner provided for in an act of the general assembly of the State of Indiana, entitled “An Act Concerning Municipal Corporations” approved March 6, 1905, and an act amendatory thereof and supplementary thereto; and providing that all proceedings had, and work done in
It further appears that at the same time the said board adopted a further order and made the same record in the records of the city office, said order being as follows: “Absolutely no remonstrance will be considered by the Board of Public Works or the Council, which has agreed to pass the necessary ordinance over the heads of remonstrators, if any.”
It further appears that thereafter said board, on February 3, 1914, in regular session, approved said improvement resolution No. 30, and caused notice to be published of that fact, and of the time and place when said board would hear remonstrances concerning same, and that on February 14, 1914, said Kattman, as city civil engineer, filed with said board his estimate of the cost of said improvement, fixing the same at $58,000.
It further appears that on March 9, 1914, said board finally confirmed the.said improvement resolution, as adopted, and ordered said work advertised for bids, and that thereafter on April 27, 1914, the work of improving said College avenue, under said resolution was let and awarded to Neil-David Construction Company. That on May 4, 1914, said .construction company, which was in fact a partnership composed of James A. Neil, Elias W. David, James D. Hill, and Frank O. Hodson, the appellants herein, entered into contract with said city of Terre Haute, by and through its said board of public works, wherein arid whereby said construction company agreed and undertook to — “make said College Avenue Improvement undersaid Improvement Resolution No. 30, in a good, firm, substantial and workmanlike manner and strictly in accordance with the plans,
There were further allegations in the complaint that said work was not done and performed in accordance with the terms of said contract, and said plans and specifications; that the materials did not conform to said specifications; that the pavement-was not of the thickness required; that he had not curbed the uncurbed portions as required by his contract; that the catch-basins and manholes had not been constructed according to contract. It also alleged that said improvement as constructed, was of no value. There were many other alleged deficiencies in said work and of failure by said appellant to comply with this said contract.
Said complaint further alleged that said board of public works, and said city civil engineer, at all times well knew each and all of said facts, and that said work was not being .done, and was not done according to the plans, specifications and contract entered into by said board of public works with defendants, appellants herein.
That although he well knew the facts, the said city civil engineer accepted said work, and said board, well knowing all the facts, ordered an assessment roll prepared for same, which was done by said engineer, who filed the same with said board, which adopted and approved the same, and ordered notice to be given property owners, notifying them that the board would be in session at its office in the city hall building, at the northwest corner of Fourth and Walnut streets, in the city of Terre Haute, Vigo county, Indiana, from two to four o’clock p.m. on Thursday, August 27, 1914, to hear objections to the confirmation of the final assessment roll of said street.
That on August 27, 1914, the said board met at the' time and place as set forth in said legal notice, and the
That by the terms of said contract and specifications as aforesaid, the total contract price for said work as fixed by said contract was $55,997.50; that the assessment roll so arbitrarily made, adopted and confirmed by said board was for the total sum of $64,563.60.
There was a prayer that the acceptance of said work be set aside and held for naught; that the adoption, approval and confirmation of said assessment roll be set aside as against plaintiffs and other property owners similarly situated; and that the defendants be enjoined from enforcing or attempting to enforce said assessment roll.
To this amended complaint, after the court had overruled a motion to make the same more specific, a demurrer was interposed, which was also overruled, and the defendants then filed answer in three paragraphs; yiz.: (1) General denial; (2) matter in estoppel, and
To these affirmative paragraphs of answer, demurrers were interposed and sustained by the court, and these rulings, in so sustaining said demurrers, are the first alleged errors presented for our consideration.
This paragraph of answer was not addressed to the theory of the complaint. The plaintiffs were not seeking to set aside said contract, or enjoin the performance thereof; they were complaining, in part, because said contract had not been complied with, as to the manner in which said improvement was to be constructed. The court did not err in sustaining this demurrer.
In the case of Alsmeier V. Adams (1914), 62 Ind. App. 219, 233, 105 N. E. 1033, the court said: “While fraud in terms is not charged in the complaint, the facts averred show a radical and apparently inexcusable departure from the kind of sewer specified in the contract; materially defective work in the actual construction; * * * and an arbitrary acceptance of the work by the board, with full knowledge of all the facts and for the express purpose of relieving the contractor. Such facts, with others pleaded, are sufficient to constitute a charge of constructive fraud, or fraud in law. It is only in proceedings to which §21 of our statute of frauds (being §7483 Burns 1914, §4924 R. S. 1881) is applicable that fraud or fraudulent intent must be directly averred as a fact.”
The court did not err in overruling said motion to make said complaint more specific.
It is next urged that the court erred in its several conclusions of law.
We therefore next proceed to consider the facts of this case as found by the court.
There was a decree canceling and setting aside the said assessment roll complained of, and enjoining the defendants from attempting to collect all or any part thereof, as against the property of the plaintiffs or any of them, and that plaintiffs recover their costs.'
The fourth, sixth, seventh, twelfth and fourteenth conclusions of law were as follows:
“VI. — That the assessment roll, which was approved and adopted by the then board of public works of the city of Terre Haute, Indiana, and which created a lien
“VII. — That the said several assessments, and each of them, and the liens created thereby, on the lots and parcels of land of the several plaintiffs and each of them, are illegal and void, and should be set aside, and the defendants should be perpetually enjoined from em forcing or attempting to enforce the collection of all or any of the assessments.
“XII. — That the action of said, the then board of public Works of the city of Terre Haute, Indiana, in adopting the primary assessment roll, and all and every of the subsequent acts thereon, were and are, as to all the plaintiffs, of no force and effect in law and void.
“XIV. — That the defendants and each of them should be and they are. hereby perpetually enjoined, from colle'cting or attempting to collect, all or any part of the assessment roll, as against the property of plaintiffs or any of them.”
It is the opinion of this court that the findings were sufficient to sustain the foregoing conclusions of law, and that said conclusions are, independently of any other conclusions, sufficient to support said decree.
' It also therefore follows, that there was no error in overruling appellant’s motion for a venire de novo.
The motion for a new trial was filed by the appellants who were the several individuals composing the partnership which did the said work as contractors.
The motion contains sixty-eight specifications of reasons for a new trial, some of which are valid reasons for a new trial, but many of which are not. However, each and all of said reasons, so specified, challenge, or attempt to challenge the sufficiency of the evidence to support the several special findings.
In their brief filed herein, as touching causes men
This statement was not a compliance with clause 5 of Rule 22 of this court, and is insufficient to present any question for our consideration. Evansville, etc., R. Co. v. Hoffman (1917), 67 Ind. App. 571, 118 N. E. 151. Moreover the objections taken in clause (c), supra, was not embodied in the motion for a new trial and therefore had no proper place in said brief.
However, considering the importance of this case, the writer of this opinion has read the record herein in its entirety, and from the record we discover among others, the following facts, viz.:
That the improvement resolution, adopted by the board of public works, January 17, 1914, provided for the improvement of the street in question, “by curbing the uncurbed portions of the side-walk thereof, with Oolitic curbing, and by grading and paving the roadway thereof with reinforced macadam;” that at the same time said board also resolved; “absolutely no remonstrance will be considered by the board of public works, or the council, which has agreed to pass the necessary ordinance, over the heads of the remonstrators, if any, so adopted by the board.” That on February 3, 1914, said board of public works adopted said street improvement resolution, and ordered the same advertised; that at a meeting of said board held February 20, 1914, the city civil engineer submitted his estimate of the cost of
During the time these improvements were being made, Frank A. Kattman was city civil engineer of the city of Terre Haute. He was called as a witness by plaintiffs, and testified among other things: That he did not prepare the original plans for .the improvement, that the plans were brought to his office by the mayor who told him how they wanted the concrete street built; that he did not agree with the plans and tried to argue the matter with the board of public works, which after a consultation with the mayor, said it was the kind of concrete improvement they wanted; while the work was in progress the board of public works were along there on several occasions; that private property, on one side of said College avenue, between said First and Twenty-fifth streets, for an entire block, (about 360 feet) did not have a dollar assessed against it, for this improvement.
This entire matter looks bad. One cannot help, after reading the record, being impressed with the idea that the mayor and board of public works of the city of Terre Haute, deliberately set about, in defiance of the rights and wishes of the property owners, by concealing their true purpose, to make an improvement of a kind not wanted by said owners. They forgot that as officers of said city they were simply “stewards” for the people, and that, “It is required in stewards, that a man be found faithful” to his trust.
When we consider that the estimate by the engineer fixed the cost of all this work at $58,000; that the contract, plans and specifications did not specify the number of lineal feet of curbing required; the number of sewer connections to be put in; the number of gas laterals to be put in; the number of water laterals to be
While some of the findings of fact herein are not legally valid, as such, enough facts are found, and there is abundant evidence in the record to support such findings, and the findings are sufficient to sustain the necessary conclusions of law, and the judgment herein.
The judgment.of the Parke Circuit Court is therefore affirmed.