Bd. of Com'rs of La Porte Cnty. v. Wolff
| Decision Date | 06 December 1905 |
| Docket Number | No. 20,332.,20,332. |
| Citation | 76 N.E. 247,166 Ind. 325 |
| Parties | BOARD OF COM'RS OF LA PORTE COUNTY et al. v. WOLFF et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marshall County; A. C. Capron, Judge.
Action by Charles Wolff and others against the board of commissioners of La Porte county and others. From a judgment in favor of plaintiffs, defendants appeal. Transferred from the Appellate Court, under Burns' Ann. St. 1901, § 1337u. Reversed.
See 72 N. E. 860.
F. E. Osborn and W. A. McVey, for appellants. C. R. & J. B. Collins and J. F. Gallaher, for appellees.
This suit was brought by Charles Wolff and others, as taxpayers of the townships of Springfield, Coolspring, and Michigan, in the county of La Porte, against the board of commissioners of said county, the individual members of said board, and Arlantis Runyan, Thomas W. Sullivan, and Calvin L. Cree, copartners and contractors for the construction of certain free gravel roads in said townships. The action was dismissed as to defendant Calvin L. Cree. The complaint was in a single paragraph, and sought to enjoin the board from accepting said roads as completed according to contract, from allowing the claims of the contractors for work, and from causing such claims to be paid. The complaint was answered by a general denial. The venue of the cause was changed to the Marshall circuit court. The cause was tried by the court, and at appellants' request a special finding made and conclusions of law stated thereon. Motions for a new trial were overruled, and judgment was rendered for appellees. The contractors Runyan and Sullivan appealed, and made the board of commissioners a co-party; but it has taken no steps to secure a reversal of the judgment. The assignment of errors by Runyan and Sullivan challenges the sufficiency of the complaint, the correctness of each conclusion of law stated, and the decisions of the court in overruling motions to modify the judgment and for a new trial.
The complaint alleges in detail all the proceedings leading up to the improvement of the roads and the letting of the contract to appellants Runyan and Sullivan at their bid of $83,675, which was the lowest bid offered for said work. It is averred that a contract was duly entered into between the board and said Runyan and Sullivan, whereby said appellants, for the consideration named, agreed to construct said roads in accordance with the plans, profiles, and specifications therefor adopted by the board, copies of which were attached to the complaint; that the total length of said roads was about 25 miles; that said appellants had performed work thereon, and had received estimates and allowances to the aggregate amount of $46,000; that the board, and the engineer placed in charge of said work, in disregard of their duties and of the interests of appellees, had negligently and willfully permitted said contractors to perform said work defectively and in violation of said contract, in failing to properly grade the roadbeds, to roll the surface of the roads after full completion, to make the side slopes, ditches, cuts, and fills conform to plans and specifications, to put in the required number of culverts, and to flood said roadways; that the board knowingly permitted such violations of the contract, and made the contractors allowances in excess of the value of the work done in defiance of the terms of the contract, and over the protests of appellees and other taxpayers; that all of said acts “were negligently and willfully done in fraud of the rights of these plaintiffs and of all the taxpayers of said townships, and in pursuance of a fraudulent agreement and collusion entered into between the said commissioners and the said contractors to permit the said contractors to perform the work upon the said highways in an improper, deficient, and slighting manner, and, contrary to the contract,” etc.; and that the commissioners were intending negligently, willfully, and fraudulently, to accept the said improper and defective construction of said roads in compliance with the contract, and to pay the contractors for such defective work and materials the full amount that would be due upon full compliance with the contract. Other allegations setting forth details, and usual in suits of this character upon the subject of damages, follow, and the prayer is as indicated in the opening statement. We need not examine the complaint and determine its sufficiency, since there was a special finding of facts made, and appellants' exception to the conclusion of law presents the same question as their demurrer to the complaint. Ross v. Van Natta et al., 74 N. E. 10, 164 Ind....
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