Case v. Johnson

Citation91 Ind. 477
Decision Date26 November 1883
Docket Number10,193
PartiesCase et al. v. Johnson et al
CourtSupreme Court of Indiana

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

R. C Gregory, W. B. Gregory and F. B. Everett, for appellants.

J. R Coffroth, for appellees.

Howk C. J. Hammond, J., did not participate in the decision of this cause.

OPINION

Howk, C. J.

This case is now before this court for the second time. Case v. Johnson, 70 Ind. 31. On the former appeal it was held, by this court, on the authority of Case v. Fowler, 65 Ind. 29, that an instruction of the trial court was erroneous, and the judgment was reversed and the cause remanded for a new trial.

The suit was commenced by the appellees, seven in number, in the Benton Circuit Court, to enjoin the appellants, Case and Jones, from improving Fifth street, in the town of Fowler, in Benton county, under alleged contracts between them and the trustees of the town, for such improvement. The record shows that the town trustees, on the 18th day September, 1875, awarded the contract for four of the five sections of such street improvement to the appellant Case, and for the other section thereof to the appellant Jones; that, on September 20th, 1875, Case's written contract and bond for making such improvement were formally executed; that, four days afterwards, to wit, on September 24th, 1875, this suit was commenced; that, notwithstanding the institution and pendency of this suit, Case proceeded with the improvement of the sections of the street awarded to him; and that, on October 1st, 1875, one week after the institution of this suit, the town trustees rescinded their order awarding a section of the street improvement to the appellant Jones, and without any other or further notice awarded such section to the appellant Case, and ten days thereafter entered into a written contract with him therefor.

On the 16th day of November, 1875, the appellees filed, in the Benton Circuit Court, an amended complaint, wherein they alleged, among other things, that the appellant, the Town of Fowler, was an incorporated town organized under the general laws of this State, for the incorporation of towns; that the town board consisted of three trustees, of whom the appellant Jones was one, and the appellant Case was the assessor of such town.

"That at a meeting of said board of trustees, to wit, on the 28th day of July, 1875, the said defendant Case presented to said board a petition asking that Fifth street, in said town of Fowler, be properly graded and gravelled, commencing at the west line of Railroad street, where the same crosses said Fifth street, and from thence to the east line of the corporation; that said Case, then and there, represented to said board that said petition was signed by a majority of all the resident owners of the lots and parcels of land abutting on said portion of said Fifth street, so asked to be improved as aforesaid; that the said board, at their said meeting, granted the prayer of said petition and ordered said improvement to be made.

"That afterwards, to wit, on the 30th day of August, 1875, the said board met and adopted a grade for said portion of said street; and also, that the proposed grading and gravelling of said street be divided into sections; and also ordered that the clerk should give notice that the board would receive sealed proposals for the making of said improvement by sections.

"That afterwards, to wit, on the 10th day of September, 1875, the said clerk of said town caused to be published in the Benton Democrat, a weekly newspaper, published and of general circulation in said county, the following notice, to wit:

"'LEGAL NOTICE--NOTICE!

"'Notice is hereby given that the board of trustees of the town of Fowler, Benton county, Indiana, will receive sealed bids for the improvement of Fifth street, in said town of Fowler aforesaid, up to 12 o'clock M., of Saturday, September 19, A. D. 1875; plans and specifications can be seen by calling upon the clerk of said town board. The board reserves the right to reject any or all bids.

"'O. Barnard, President.

"'Attest: J. F. Warner, Clerk.'

"That the same was the sole and only notice ever given for the letting of the contracts for said improvement.

"That afterwards, to wit, on the 18th day of September, 1875, the said board met and awarded a pretended contract for the making of a part of said improvement, to wit, said sections or divisions numbered one, two, four and five (1, 2, 4 and 5), to said defendant Case; and also at the same time awarded a pretended contract for the making of a part of said improvement, to wit, section numbered 3, to said defendant Wm. M. Jones, who was then and still is one of said trustees.

"That afterwards, to wit, on the 20th day of September, 1875, the said board met and entered into a pretended written contract with said Case for making a portion of said improvement, and accepted the bond of said Case for the performance of the same, to wit, sections one, two, four and five.

"That afterwards, to wit, on the first day of October, 1875, the said board met, and rescinded its said order, dated September 18th, 1875, awarding said pretended contract for the making of a part of said improvement, to wit, section or division numbered three (3) to said defendant William M. Jones; and thereupon, without any other notice whatever, awarded a pretended contract for the making of said part of said improvement, to wit, said section or division numbered three (3) to said Case; that afterwards, to wit, on the 11th day of October, 1875, the said board met and entered into a pretended written contract for the making of said last mentioned portion of said improvement with said defendant Case, and accepted his bond for the performance of the same.

"That pursuant to said pretended proceedings of said board, and pursuant to said pretended contracts, but after the commencement of this action, the said defendant Case proceeded towards the making of the whole of said improvement, and that afterwards, to wit, on the 24th day of October, 1875, the said board met, and upon the application of said defendant Case, granted him an estimate for the portion of said improvement so then done by him, and ordered that the same should be liens on the lots and parcels of land abutting upon said portion of said street; and that afterward, to wit, on the 5th day of November, 1875, the said Case instituted in this honorable court at the present term thereof civil actions against each of these plaintiffs, to recover from each of them the amount of the said estimate so pretended to be made chargeable against them respectively, and that said actions are now pending in this court.

"1. That a majority of the owners in number of said lots and parcels of land abutting upon said portion of said Fifth street so to be improved as aforesaid, or the majority of the owners of such lots and parcels of land, measuring the front lines of the same, residing in said town of Fowler, at the time of presenting said petition to said board, as aforesaid, had not signed said petition, or authorized the same to signed for them; and that the persons whose names appear upon said petition did not at said time constitute a majority of such resident owners of lots and parcels of land abutting upon said portion of said Fifth street either in number or amount of frontage of such lots or parcels of land abutting.

"2. That said petitioners asked that said Fifth street might be improved, as a whole, from the west line of Railroad street, where the same crosses the said Fifth street, to the east line of the corporation, and the said board granted said prayer, and ordered said improvement to be so made; that afterwards the said board, without the consent of said petitioners, ordered that said improvement should be made in five separate sections or divisions, and ordered the clerk of said town to give notice for the letting of the said work in sections as aforesaid; that the said clerk disregarded the order of said board, and gave notice that said work should be let as an entirety; the only notice ever given for the letting of the contract for said improvement was the notice hereinbefore set forth.

"3. That said board let the said contract for the making of said portion of said improvement, to wit, sections numbered 1, 2, 4 and 5, in sections as aforesaid, to said Case, without any notice whatever of such letting.

"4. That said board let a portion of said improvement, to wit, said section or division three (3) to said William M. Jones, who was at the time a member of said board.

"5. That said board let a portion of said improvement, to wit, said section or division No. three (3) to said Case, without any notice whatever.

"6. Said board let said pretended contracts for said improvement, on Saturday, the 18th day of September, 1875, under said notice that they would let the same on Saturday, the 19th day of September, 1875, no other notice having been ever given."

Then follow averments that plaintiffs were each the owners of real estate which abuts upon said proposed improvement.

"That at all times, from the commencement of said proceedings until the commencement of this action, they protested against the same, and notified said defendants that they would not be bound by said proceedings, and would not pay any part of the cost of said proposed improvement." Wherefore, etc.

The cause was put at issue and submitted to the court for trial, and, at the request of the parties, the court made a special finding of the facts, and stated its conclusions of law thereon, in substance, as follows:

The following is a substantial statement of the facts found:

That said town of Fowler is, and was at the time...

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