| Ind. | May 15, 1879
In this action, the appellee sued the .appellant, in a complaint of but one paragraph, wherein he alleged, in substance, that on the 23d day of June, 1875, at a regular meeting of the board of trustees of the town of Elwood, in Madison county, Indiana, a petition, signed by a majority in number of the resident owners of lots and parcels of land bordering on that part of Main street to be improved, was pi’esented to said board of trustees, asking for the improvement of Main street, from the place where Duck Creek crosses said street to the east end of the street, being more than one square in length, by the grading and gravelling of said street and sidewalks ; that on the 3d day of August, 1875, at a regular meeting of said board of trustees, in pursuance of said petition, it was ordered by the hoard, that said street be improved by grading and gravelling the same, in a certain specified mode ; that, before the-letting of said work, notice was given by the clerk of said board for more than twenty days, by posting up written advertisements in five of the most public places in said town, that the bo,ard of trustees would receive bids for said improvement on the 31st day of August, 1875; that on the 24th day of August, 1875, the appellee made and delivered to said board his written bid to do said work, according to the specifications adopted by said hoard, at certain specified prices; that on said 31st day of August, 1875, the said board of trustees, at a regular meeting thereof then held, accepted and received the
To this complaint the appellant • demurred, upon the ground that the facts stated therein were not sufficient to
The issues joined were tried by a jury, and a verdict was returned for the appellee, assessing his damages in the sum of sixty-four dollars and forty-eight cents.
The appellant’s motion for a new trial having been overruled, and his exception entered to this decision, judgment was rendered by the court, on the verdict, and from this judgment this appeal is now here prosecuted.
In this court, the appellant has assigned, as errors, the following decisions of the circuit court:
1. ■ In overruling his demurrer to the appellee’s complaint ; and,
2. In overruling his motion for a new trial.
We will consider and decide the questions presented and discussed by the appellant’s counsel, and arising under these alleged errors, in the order of their assignment :
1. The proceedings of the board of trustees of the town of Elwood, which constituted the basis of the appellee’s alleged cause of action, were evidently intended to be had and held under and pursuant to the provisions of sections 8, 9 and 10 of “An act to enable incorporated towns to lay out, open, grade, and improve streets and alleys,” etc., approved Api’il 27th, 1869. 1 E. S. 1876, pp. 898 and 894.
These sections were very carefully considered by this court, in the ease of Anthony v. Williams, 47 Ind. 565" court="Ind." date_filed="1874-11-15" href="https://app.midpage.ai/document/anthony-v-williams-7040270?utm_source=webapp" opinion_id="7040270">47 Ind. 565 ; in which case, in delivering the opinion of the court, Bus-kirk, C. J., said:
“ In every ease where an incorporated town seeks to improve the streets within its limits at the expense of the parties whose lots border upon the street, except in the*456 case of a street ‘ around ’ the public square, there must be a petition signed by a majority of the property owners upon which to base the action of the board ; there must be specifications sufficient to show the kind, and quantity, and location of the work to be done ; there must be an advertisement for proposals to do the work ; a contract to do the work according to the specifications must be entered into ; the work must be done according to the contract, and the amount of the contract price therefor must be estimated to the different tracts of ground bordering on the street improved; and the board must require the owners of those tracts to pay the amount so estimated, and upon the failure or refusal of the owners of such lots or parcels of land upon which such estimates have been made, for the space of ten days after the date of such estimate, the contractors may immediately bring suit and recover, against the owners of such lots or parcels of land, the amount of such estimates. ' These are the essential requisites of the statute, and, in our opinion, should be substantially averred in the complaint; for otherwise there is no protection to owners of property in incorporated towns.”
The doctrine of the case cited has been approved and followed by this court in the more recent cases of Moore v. Cline, 61 Ind. 113" court="Ind." date_filed="1878-05-15" href="https://app.midpage.ai/document/moore-v-cline-7042332?utm_source=webapp" opinion_id="7042332">61 Ind. 113, and Anthony v. Cooley, 61 Ind. 323" court="Ind." date_filed="1878-05-15" href="https://app.midpage.ai/document/anthony-v-cooley-7042371?utm_source=webapp" opinion_id="7042371">61 Ind. 323.
Upon the authority of the cases cited, it seems to us that the complaint in the case at bar must be held to be insufficient, on the demurrer thereto for the want of facts. There is no averment in the appellee’s complaint, that the contract between the town of Elwood and the appellee, under which he claimed the street improvement was made, was a written contract. In the absence of such an averment, and where, as in this case, a copy of the alleged contract lias not been filed with, nor made a part of, the appellee’s complaint, we are bound to presume that the con
If it could be said, that the parol acceptance of the'appellee’s written bid for the work, by the corporate authorities of the town of Elwood, was in any sense a contract in writing, still it would not be a contract, on the part of the appellee, to do the contemplated work according to the specifications adopted by the town trustees. For in his written bid, by the terms of which alone he would be bound in the absence of any other contract, the appellee made no reference whatever to any specifications, which had been adopted by the trustees of said town for the improvement of said street. It seems to us, therefore, that the appellee’s complaint in this case is radically and fatally defective, ou the appellant’s demurrer thereto for the want of sufficient facts, in this, that it failed to shoiv that the appellee had entered into such a contract with the board of
We think, that the appellee’s complaint was defective and insufficient on another ground. The statute provides that “ the cost of any such improvement,” as the one mentioned in the complaint, “ shall be estimated according to the whole length ” of the part of the street to be improved, “ per running foot; ” and “ the owners of lots or parcels of land bordering on * * * * the part thereof to be improved, shall be liable to the contractors for their proportion of the cost of such improvement in the ratio of the first [front?] line of lots, or parcels of land owned by them, to the whole improved line.” 1 R. S. 1876, p. 893, see. 9.
It seems to us, that the appellee should have averred in his complaint, for the purpose of showing that the requirements of the statute had been complied with, and that the appellant’s lot had been charged with no more than its just proportion of the cost of the improvement, the facts in regard to the cost of the improvement, the whole length thereof, the length of the appellant’s front line thereon, and that the cost thereof had been estimated to the different lots or parcels of land bordering thereon, and the owners thereof, in the ratio prescribed by the statute. The complaint did not contain an averment of any of these facts; and for the want of such averments, or their equivalents, we think that the appellant’s demurrer to the complaint ought to have been sustained.
2. Having reached the conclusion that the court erred in overruling the appellant’s demurrer to appellee’s complaint, it is hardly necessary for us to consider or decide any of the questions arising under the second alleged error, namely, the overruling of the motion for a new trial. Among the causes for such new trial, assigned by the appellant, was the insufficiency of the evidence to sustain the
Other questions, relating to the alleged insufficiency of the evidence, and to the errors, as claimed, of the court in its modification of certain instructions asked by the appellant, have been presented and discussed by his counsel, in their able and exhustive brief of this cause ; but, as they
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the demurrer to the complaint, and for further proceedings in accordance with this opinion.