58 Ind. App. 654 | Ind. Ct. App. | 1915
This was an action by the State of Indiana on relation of the board of commissioners of Perry County,
Each paragraph of complaint avers that the board of commissioners of Perry County entered into a contract with appellee Heim for the construction of a bridge over Castle-berry Creek, and while the work was under construction, a storm caused a washout which enlarged the creek and justified the board in contracting with Heim for additional work; that when the work was near completion, it gave way, and the board refused to pay for it, and thereupon Heim filed suit against the board to recover for work and labor performed, which suit the board resisted by filing answers; that while the action was pending, the board met in special session, and Heim submitted plans, and a proposition to compromise their differences, and a contract was entered into whereby Heim was to complete the bridge according to the plans and specifications submitted for $1,800, and was to execute a bond guaranteeing that the work contracted for would stand and in every way serve the purpose for which it was placed and erected for the period of twelve months from the date of its completion, and was to dismiss his suit against the board; that such a bond was executed in accordance with the terms of said contract; that the bond was accepted and approved by the board, that the work was completed, and Heim was paid $1,900 according to his contract; that he failed to construct the fill and roadway provided for in said contract in a good and workmanlike manner, for, instead of taking clay and earth usual and necessary for that purpose, he carelessly and negligently took silt to construct the fill and roadway, that when the water in the Ohio River came in contact with the silt the silt dissolved and disintegrated, causing the fill and roadway to fall away; that the work did not stand for a period of twelve months from the date of its completion, and did not in every
The contract between the board and Heim, after setting out certain specifications as to the work to be done on the bridge by Heim, none of which specifications mention that the fill is to be made with earth and clay, and naming as the consideration $1,900, the amount remaining unpaid on the original contract and additional work, contains the following clause:
‘ ‘ Said party of the first part further agrees to execute herewith a bond in the sum of Two Thousand dollars, guaranteeing that the work herein contracted for will stand and in every way serve the purpose for which it is placed and erected for the period of 12 months from the date of the completion thereof.”
It was also agreed that Heim would dismiss his pending action against the board, and there is a further provision, “the amount herein to be paid on the completion of the work and acceptance thereof by the said party of the second part.” The provisions of the bond material here are the following:
‘ ‘ The conditions of the above obligation are such that whereas, the board of commissioners of Perry County, Indiana, is about to let a contract for stone walls and fill for Castleberry Creek culvert, and whereas, the above named Henry J. Heim has filed a bid for said work with the auditor of the county. Now therefore, if the said board of commissioners shall award him the •contract for said work, and the said Henry J. Heim shall promptly enter into a contract with said board of commissioners for said work, and shall well and faithfully do and perform the same in all respects according to the plans and specifications adopted by the board of commissioners and according to the time, terms and conditions specified in said contract to be entered into and shall promptly pay all debts incurred by him in prosecution of said work * * * then this obligation shall be void; otherwise to remain in full force, virtue and effect.”
Judgment affirmed.
Note.—Reported in 108 N. E. 776. As to liabilities of sureties upon successive bonds, see 10 Am. St. 843. See, also, under (1) 5 Cyc. 757; (2) 5 Cyc. 765; (3) 32 Cyc. 109.