*1 Feigel. Indiana Rehearing De- 25,784. 1931. denied Filed November [No. dismissed reconsider 1932. Petition to cember February 22, 1933.] *2 Gilliom, Attorney-General, D. and Connor Arthur L. Ross, Attorney-General, appellant. for Assistant (cid:127) and & Funkhouser, & Markel Henderson Funkhouser Henderson, appellee. against brought appellee J. This actionwas
Roll, ,State Highway of Indiana and Indiana State alleged on account Commission to recover highway com breach of a contract. The construction substance, on plaint, paragraph, alleges, in one February 19, 1924, In appellee and State Commission, through Highway diana, the State the terms of which entered a written contract appellee agreed neces and labor furnish material sary In highway construct a certain State Project diana, designated “Federal Aid known and extending city B,” of Prince No. from the Section northerly direction, ton in a for and in consideration money copy A mentioned in said contract. sum appellee’s agreement proposal bond complaint as “Exhibit part a of the filed made with A,” specifications referred to in copy a of the also complaint and marked a made contract were B.” “Exhibit parties said after entered into contract was
Said advertisement, appellee as legal and was let to due and best bidder. the lowest and Highway Commission had
The defendant appellee, engineers, of whom told corps the chief construction of 19, 1924, proceed February improvement said of his accordance with terms machines, Thereupon appellee contract. assembled his tools, plants improvement and labor at the site of project necessary arrangements prep- and made all begin arations to In order construction of the same. carry highway out the com- of which knew, necessary mission con- it was to have consisting siderable equipment kinds of of various road-building machinery, a list out of which is set complaint, some of which he then owned and some particular of which he purpose, rented for the such renting day, expense per was had at a rental of $210 simultaneously begin which rental was to with the be- ginning upon comple- of said construction and end tion thereof. hiring superintendent
Instead of did superintending himself, and the reasonable *3 per day. value thereof was $10 carry properly In order to on the work it neces- was sary permanent organization. to did and he have a The expense maintaining permanent organization, of this which he expense, denominates “overhead” included of- rent, help, fice telephone, superintendent, office assistant employees, and other expense and this was continuous going delayed, whether the on work was whether work, employees expense were idle or at and the thereof day. per was $20
Appellee ground plot leased a of for his construction camp equipment siding had put in railroad in such use construction. 26, 1924, commission, engi- March
(cid:127)On its chief neer, appellee shipments to told receive of cement and materials, ready equipment and to have his other to begin laying by April pavement 15, 1924, and, pur- in thereto, he ordered cement suance and other materials, according things prepared commence work all to contract. duty com-
That, it under the was way highway, right for said mission to furnish the any right failed, neglected and refused secure but go on, way could construction the work of so and, do, on though requested appellee so to often expense failure, went account of his overhead such whereby lay idle, loss equipment he suffered and his expense. $22,777.21 payroll, rents and overhead high- point on certain said appellee reached a When engi- that the grading it was discpvered his error, made charge, through negligence and had neer in thereby a fill mistake, required appellee to make depth; proper inches in excess of seven engineer discovered his after the fill had been made said engineer required mistake, said dirt; and because inches of remove said excess of seven thereof he a total loss of suffered $436.11. stakes, engineer, place the had so fixed his
At one paved graded had been said impossible to accordance therewith it would have been keep paving, ditches on the shoulders and said obtained said had theretofore been delay thereby commission, occasioned and because damaged $276.92. delays set out were with- That all and errors above wholly appellee, on the but due out fault failure, neglect and refusal of the commission to negligence right way, obtain and said errors and said *4 charge; engineer in said commission at all of the times beginning during construction of said and before knowledge having progress thereof had full of not hindrance, delay of the and and dam- by appellee. ages Appellee prays judgment for suffered contract, $21,054.13. on account the breach of said Appellant’s of facts was over- demurrer want ruled, thereupon paragraphs in were answers four denial; general paragraph filed. The first sec- substance, plea payment; alleged, in ond a the third appellee entering into the contract and between commission, appellant through highway express provisions specifications, which of the standard complaint, and part of the attached and made par- part which formed a of the contract between ties, carefully the site to examine was invited and it was contemplated work expressly through provided appellant, said com- mission, judged for and should assume that had satisfied encountered himself as to the to be conditions character, quality quantity and as of work to the performed to be and materials to be furnished.
Appellee proposed work did examine the site of knowing or had the the facts as to knew means of ownership proposed im- of all lands included land, provement any on and said easements over and, facts, knowledge reason of such he had appellant, through commission, acquired said had not highway an easement for the location said the land proposed contract and in the and files said records of said commission.
Notwithstanding appellant, through the fact that said commission, acquired right way had not all of the improvement, the location of full knowl- said and with edge facts, appellee of such entered said contract contemplated and undertook the work therein.
By express provision specifications, pro- of said it was engineer that the chief of said commission vided should authority suspend all have the when, opinion, in his work conditions were such that properly, could not be done case *5 materials, required provide was to store all adequate drainage, precautions as other and take such protect already protect would would work done and traveling public. By express provision specifications fur- it was said delayed provided that, ther the work should be when contractor, suspended through no fault of the director time for should allow a reasonable extension of that, completion the final and case suspension work, extension should proportion length during in direct to the of time which suspended. the work was provided
It further was in said contract compensation payment therein should full constitute including complete place, work indicated the fur- nishing materials, tools, equipment, machinery, of all any thereto, labor and work incidental as as well expenses whatever, all incurred reason of cause except provided specifications as otherwise said contract.
otwithstanding provisions plaintiff said entered proposed said contract and undertook the work as herein, knowledge and with the full that all of the high- procured had not been over line said proposed plans specifications in the there- for; fixing provisions contract said contained no procuring the time said
that, notwithstanding fact, en- said the defendant so therein tered into said contract and undertook the work accepted provisions contract above re- said by delays, ferred to as to the extension of time caused extended from time to time and that said Highway through the Indiana State this defendant Commission. time, provided specifications, time to
From monthly accepted pro- as the estimates gressed, and, work, appellee upon completion ac- cepted estimate, the final was executed and a voucher estimate, duly- for the amount of final said which forwarded to the Auditor of and a warrant issued thereon, by appellee accepted as the warrant was payment final performed for the work done under said contract.
Appellee having accepted all benefits of the extension provisions provisions and other of said contract above by to alleged referred and reason of all facts herein estopped to against assert claim the Indi- of State arising ana out of the work done under said contract claiming any or from compensation expenses further for by delays. caused
Appellant’s paragraph pleads fourth the same facts they third, urges as the constitute a waiver estoppel. of an instead
Appellee second,' third, demurred the fourth and paragraphs appellant’s answer, of which demurrer was sustained the court. court,
There was trial the which resulted in a judgment in $13,995 against ap- favor for pellant. As the judgment other defendants the Appellant their favor. filed its motion for a new trial, assigns Appellant was overruled. as errors ruling demurrers, the'court’s on the overruling and the of its motion for a new trial.
Appellant, demurrer, its challenges sufficiency the complaint point and makes the the state is the liable failure of the officers of Highway State Commission to secure further, and the contract appellant between and appellee fixed no time for the procuring of said way, and, therefore, complaint failed state an actionable breach. agree in its contentions
We cannot with
445 as to Appellant no contention makes above stated. present
validity out which by the controversy was entered It arose. proper pre state, after the proper officials taken, liminary constituted proceedings had been binding obligation state. valid state, all con its It seems be well settled adjudged dealings, abide must tracts private determining rights of govern in rules which dealing There contracting and each other. citizens for the and another its sub is not one state law jects. engages in business business When state individuals, enterprises, and enters into contracts with contracting parties rights obligations adjusted principles if upon both must be the same contracting private persons. Both parties were stand the law. Carr v. (1891), upon equality before State 370, 778, 22 Am. Ind. 26 N. E. 11 L. R. A. St. 624; Chapman (1894), 104 Cal. Pac. v. Charleston 158; Murray 457, Am. St. *7 432, In the last case Ed. 760. cited Justice U. 24 L. S. is, Strong language: “The used this truth states acting they money, are cities, borrow as sov when ordinary They the of ereignties. come level down meaning contracts have the same individuals. Their persons.” private that of similar contracts between In Carr v. supra, State, Judge Elliott, speaking the (the state) court, interpreted are “Its contracts said: are, and the law of individuals which as the contracts rights responsibilities individual meas measures exceptions, ures, those of it with few state whenever ordinary Gray business contract.” enters an v. 567; State, rel., Ind. ex (1880), 72 Ralston State v. 54; 150, City E. (1914), Indianapolis 105 N. 182 Ind. (1916), Indianapolis 277, Co. 185 Water Ind. v . City Grogan v. 369; San Francisco (1861), 113 E. N. 527; Y. (1878), N. People Stephens 590; 18 Cal. v. (1918), 116 Co. v. Construction State Sehunnemunk Mayor, 569; Supp. Caster 770, Rep. 189 N. Y. Misc. v. Greenhow (1871), Hartman 43 N. Y. etc. Cyc. 880-881. 271; 36 672, L. Ed. U. S. weight of author It, seems, by decided therefore, the be con case should ity, in the instant that the contract n (cid:127) though individuals. it was between sidered light the decisions Looking contract at this principles plainest to, thát to us referred occurs a covenant justice require implication of right of provide a of the state prosecute his as to enable so Any economy. other advantage and to the utmost mutuality agree destroy the construction would power of the state ment, practically in the put it true It is by contractor. performance to defeat appel expressly state does not way, it fix right nor does furnish the lant shall acquired; but be definite time the same should when language implication from the arises the clearest object and interest agreement its avowed highway proposed over which This the' state. be secured constructed should provisions of the position fortified is further lays provides and down highway law, which state procedure the state can secure method way. In the p. right of Acts such a §24. State, supra, Co. v. Construction case of Schunnemunk -by company the construction an action which was York oc against of New to recover failure of the state to secure casioned interrupted in contractor was its construc *8 the state had failed to secure a because tion work and, by thereof, right of reason much of many plant employees of- contractor’s its the prolonged, idle, period rendered of construction court, in its The upon it. serious loss was inflicted has opinion, the state “The is stated: issue whether interrupt by interfering with violated the contract obligation. ing its performance the claimant its corporations or Such interference between individuals quote further a from confers action.” We : n “If good faith believed same case an individual contracted with a builder he was owner of land and during the upon it, and for the construction a house title, no progress that he had work discovered interrupted performance his builder structure, for the he would be liable erection of caused; here.” damage . The is no different . . situation n Thiscase seems to party place state, where an contract, plane as indi to a business same harmony vidual, in this state is in law State, supra. expressed Bren in the case of Carr v. Rep. Misc. nan v. Construction Co. State Supp. Construction N. Y. Schunnemunk supra; State, supra; State, Caster v. v. Co. v. Carr Indianapolis City Indianapolis Mayor, etc., supra; v. Grogan Greenhow, supra; Co., supra; Hartman v. Water State, Chapman Francisco, supra; City San v. . v etc., (1886), 102 York, supra; R. Co. New Mansfield 205, N. E. 386. N. Y. that, had appellant’s
It would seem brief from citizens, it would concede private contract been between consti- facts to complaint contained sufficient contract, it con- action for breach of tute a cause of party to this that, state is tends action for the reason a cause of not state complaint does makes the state nor the contract the law that, “neither High- the officers of failure of for the liable for the procure Commission pleaded” the facts employees of its under mistakes *9 Brief, 214), support (Appellant’s 1, page and in Point Sylvester proposition of v. this of Newman cites cases (18 City Cape 73), 106; 42 Ind. Coonan v. of 745; (1910), App. 129 S. W. Girardeau Mo. (1884), City Wayne 100 Ind. v. Ft. Strousser of The E. 916. Hord v. 167 Ind. 79 N. against appel first case cited anwas action lant, council of who was a member of common city Indianapolis, personally liable on a of to hold him Market improvement part contract for the Street. Appellant and obtained was successful bidder appellant completed, contract was contract. After the prop price was unable collect the from erty part Mar owners, for the reason that the of West city limits. improved not within the ket Street personally re Appellant sought then to hold that there sponsible price. It held for the contract liability appellee as a personal was no Indianapolis, common council of member of the withholding infor there fraud and was no no the contractor as well mation which was available to as to the of the common council. members City Wayne, supra,
In Ft. the common v. Strousser city for the annexa passed a resolution council of the territory, attempted contiguous but lots tion of property plotted appellant be annexed were city annexation. The to the did not consent owner property of taxes on the and collected thereafter levied brought recover the annexed, and he suit to appellant so opinion in Judge Elliott, paid. who wrote taxes position munici State, supra, discusses Carr v. presented the facts in a case as is pal such officers estoppel, this case, the doctrine and also in this bar, the case at in that there different from case is so appellant relations contractual between was no authority city, the case do not consider we this case. by appellant proposition stated anywise nothing case There in the Strousser is case. Carr conflicts with the law as stated sought recover supra, appellant State, In Hord a contract the state virtue services rendered upon the Attorney-General. turned This case with the validity invalidity to whether the contract as Attorney-General authority the con to make had the for his sought recover upon tract question pre present In the case no such services. *10 sented. Girardeau, supra, City Cape
The case of Coonan v. of deposited $1,000, plaintiff had was to which recover city guaranty with a that he would the defendant city for the construction enter into a contract said with him the if awarded to sewer said was post lowest bidder of the amount and bond one-third plaintiff of on his the bid. The contract awarded was bid, the con- but he refused to enter into construction city tract for the reason that he had discovered the had through not the certain secured of over citizens, through private lots the sewer owned which delayed constructed, was to be that he would be court, in the sewer to his loss. The construction said deciding rights parties $1,000, the to used said language: duty following “No doubt it city right of either obtain a across those lots condemnation; or, that, purchase if it could not do change plans specifi- route the sewers as words, plaintiff In other bid allowed. cations which duty city plaintiff to furnish might way along he construct the sewers.” permit plaintiff The court refused recover on thus, “the law does not principle of law stated relieve obligation from a contractual because he a man believes has con- good person whom he with cause perform.” tracted able to will not be dis- show, further We think the without above cases sup- cussion, appellant do the cases cited port sufficiency objection complaint. his
Appellant complaint insuffi is also contends that the con appellee accepted cient because the terms accepted payment, tract, performed the recovering fur is, therefore, precluded from law against a matter of ther state as claims might if and of contract. This true contract, seeking -for under' the to recover work done but, case, seeking he to recover this precluded from breach of the is not which he doing upon, accepted agreed because he consideration for the paid contract should be him construction Contracts, highway. Donnelly, Law Public §283, pp. Hollingsworth (1916), 400, 401; Chickasha v. 859, v. Trin Okla. 155 Pac. J. Weeks C. ity Supp. Y. App. 67 N. Church Div. 670.
Appellant provides further that the contract contends time, provision of the extension of this *11 only remedy. might appellee’s
contract is This delay fault be true if the caused the without party, certainly of either but true would not be delay by body where public was caused without right. Donnelly, Contracts, §284, See Law of Public 284, pp. 285; etc., Engineering, United States v. United 843, Co. Sup. 234 L. Ed. U. S. Ct. Regents Selden Breck Uni Construction Co. versity Michigan (1921), Fed. 982. In the last position urged, case appellant’s the court cited held provision” “extension of time intended that the plaintiff to be to the and not an allowance a limitation. quote We from this case: “The correct rule is that upon building by breach of a the failure perform obligations owner to his under such delays completing which the contractor his thereunder, obliged the latter is not to abandon such work, may after such elect to continue therewith and, his upon performance breach of the contract on by part, sustained entitled to recover delay him result of the caused such owner.” as.a Appellant very seriously §24, that Acts contends p. 119, 1926, being High seq. et Burns the State §8268
way Act, provides procuring system,” highways and the “state only the acts of imposed there not duties involve highway not connected also officials commission but that, provides The statute the commission. agree, passed case of failure to a resolution shall be Attorney-General, the commission and referred to the whereupon in eminent proceedings the latter shall file brings play the domain, provision and that this Attorney-General in the exercise and the courts governmental function; also, the commission could Attorney-General courts as to not control or the proceedings, there could be the time for action in the no contract. It to us that counsel for breach of seems upon point case, confused this its becomes contracting forgets party the state is commission; highway the commission and not the Attorney-General agents through are the whom the provisions acts, and that above-men state machinery provide the method and tioned statutes through perform is enabled to state duty contract, namely, imposed upon it to se upon which the contractor could cure highway. proposed say could construct the We government officials such as are activities of here involved, assisting performing duty the state in when
452 ordinary by con
imposed upon the state an business tract, bring appellant be such as to within would it precludes recovery ground that was rule which on the governmental func engaged performance in the high keep that, tion. must mind whatever We by way accepting donations commission did owner, or purchase land or the of land from Attorney-General filing in court action suits a power under the eminent domain to obtain proper officer or taken other action Highway or Com officers of the state as set out duty acting performing a Act, mission it the state by the imposed upon provision of its sup Appellant, in to do. terms of which it was bound contention, v. United States port of its cites Wilson (1875), Horowitz v. United States Ct. Cl. Sup. L. Ed. 736. Ct. 267 U. S. dam appellant to recover The first case was suit agreed ages contract. In 1864 for breach of large Quartermaster-General num to deliver with the city Washington. He endeav mules in the ber of according when perform to his ored to Kentucky, brought reached from mules, he had Washington city capture the confines of agents The imminent. forces was southern mules, city sought and deliver to enterthe contractor back stopped picket line and turned at but were Washing military governor of under an order approach the forbidding persons to defenses all ton picket guard agents camps. The notified enter the military of the United service the mules were that they under con were to be delivered States, enemy’s cavalry approaching, tract, one of their number to the to send they leave demanded an Quartermaster-General and secure order for their request The was refused and the mules admission. *13 to cases captured. quotes from other were The court can- contractor the effect that as a the United States the United public acts of not be liable for the held gov- acts sovereign, that whatever States as executive, so may do, they legislative or ernment they deemed long general, cannot be public are par- specially alter, modify, or violate to obstruct individuals. ticular it enters into which prin- the same appellant The involves other case cited announced rules as ciple, and we cannot see how controlling in case. this applicable in are these cases in erred the court Appellant urges in his brief responsible for the mistakes holding is the state point engineer project. This of an- complaint seeks urged part which to that occasioned for the extra fill which was to recover charge. The engineer in alleged mistake of engineer, appellee made stakes were fixed and, depth, proper of the fill seven inches in excess mis made, engineer discovered his after the fill was required and did remove said appellee take and was alleges point, the Also, fill. at another extra day delayed on account that he two-thirds was engineer charge the stakes to set a mistake of the motion to Appellant made no proper place. at complaint referred above parts strike out object complains, nor did he and of which now allega prove the above offered to the evidence when judgment was amount obtained tions. As the account of than claimed was due him on less securing the failure of say that these items entered into and became
we.cannot judgment. Appellee’s total demand $21,054.13, damages the total re while $13,995. The items that were not allowed covered question appear. not As the as to do whether or not engi- its the state be liable for mistakes would such appears in neer in an action for breach of contract therefore, we, proceeding properly presented, this is not express opinion upon point. no err in
We, therefore, that the court did conclude complaint or in overruling appellant’s to the demurrer second, sustaining appellant’s appellee’s demurrer third, paragraphs and fourth of answer. objections to certain appellant’s
We have examined upon evidence, objections in the main based no discussed, find theory and we appellant’s as above of evi- upon admissions rulings error the court’s case. justify of this dence that a reversal would *14 Judgment affirmed. judg-
Martin, J., in the decision C. concurs appellee, properly ment rendered favor judgment been rendered should have believes Highway for the against Commission the Indiana State clearly judgment paid out should reason that this highway fund. the state Indiana.
Keifer February 23, 25,658. Filed 1933.] [No.