37 Ind. App. 120 | Ind. Ct. App. | 1906
This is an action instituted by appellant on the bond of appellee James P. Karr, to recover damages for a breach of a contract for the construction of -a ditch in White county, Indiana, under and pursuant to the act of 1881 (Acts 1881, p. 410) and amendments thereto. §§5656-5615 Burns 1901.
From the complaint it appears that various steps were taken before the Board of Commissioners of the County of
It is not claimed that relator’s authority to prosecute this action .is found in the drainage act, but is authorized by §252 Burns 1901, §252 R. S. 1881. By this section “An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.”
Under the law it was the duty of the obligor upon entering into a contract with the auditor for the construction of the ditch to give bond with surety to the approval of such auditor, providing for a compliance with his contract. The approval of the bond rests with the auditor, and there his authority ends in that regard. The bond was given and approved as required by law. The obligation therein is one of indemnity. It is a protection to those who suffer damages and costs by reason of the contractor’s noncompliance with the contract. It is clear under the facts that the revenues of the State or county have not and will not by Karr’s failure he affected, for by the very act itself it is made the duty of the auditor to place upon the tax duplicate,' against the property assessed, all costs and expenses of the sale and resale of that part of the ditch covered by the contract. The entire additional burden is made to rest upon the landowner. He is thereby damaged. He is the party injured and interested. The bond in suit was an instrument required by the law for such improve
Judgment affirmed.