Bd. of Com'rs of Carroll County v. O'Conner

• Decision Date: 21 December 1893
• Citation: 137 Ind. 622,35 N.E. 1006
• Parties: BOARD OF COM'RS OF CARROLL COUNTY et al. v. O'CONNER.
• Court: Indiana Supreme Court

137 Ind. 622

35 N.E. 1006

BOARD OF COM'RS OF CARROLL COUNTY et al.

v.O'CONNER.¹

Supreme Court of Indiana.

Dec. 21, 1893.

Appeal from circuit court, Cass county; D. B. McConnell, Judge.

Action by John C. O'Conner against the board of commissioners of Carroll county. Ind., and the board of commissioners of White county, Ind., on a contract for the construction by plaintiff of a substructure of a bridge for defendants, and for extra work and materials furnished. From a judgment entered on the verdict of a jury in favor of plaintiff, defendants appeal. Affirmed.John H. Gould, Quincy A. Myers, George R. Eldridge, Emory B. Sellers, and William E. Uhl, for appellants. M. Winfield, C. R. Pollard, and R. C. Pollard, for appellee.

HACKNEY, J.

This action was begun in the Carroll circuit court, and, on change of venue, was tried in, and judgment rendered by, the Cass circuit court. The appellee sued the appellants, in one paragraph of complaint, for the construction, under a written contract, of the substructure for a bridge across the Tippecanoe river, dividing the counties of Carroll and White, and also for the labor in tearing down such substructure, and the labor and additional material in rebuilding the same. The theory of the complaint is that the original building of the substructure was in compliance with the written contract, and that the labor of tearing it down, and the labor and additional material in building another, were not under such written contract, but by the direction, authority, and superintendence of the chosen agent of the appellants, and the contract implied therefrom. The answer was in three paragraphs, the third of which alleged that said original construction was so defective in material and workmanship as to have failed in many respects, specifically stated, to comply with the terms of the written contract for its construction, and that such defects made it necessary to tear it down, that it might be built according to the plan and specifications made a part of said written contract. The reply to this answer is argumentative, but it sufficiently follows the theoryof the complaint to negative the allegations of the employment of defective materials and workmanship, and to charge the defects existing in the substructure to the insufficiency of the plans and specifications. The case was tried upon the theory outlined by our statement of the pleadings, and resulted in a verdict and judgment for the appellee.

The first alleged error arising upon the briefs and argument of counsel is the refusal of the trial court to permit the filing of a demurrer to the complaint following an amendment thereto made during the trial. The amendment stated no new cause of action, and in no respect misled the appellants. As stated in Town of Martinsville v. Shirley, 84 Ind. 546, “he simply stated, more fully and clearly than he had previously done,” one fact in connection with his cause of action. It would have been prejudicial to the appellants' rights to have permitted the introduction of a new cause of action, or to have deprived them of the benefits of their demurrer to the complaint; but where the amendment is only formal, and does not introduce a new cause of action, so as to render a disturbance of the issues necessary, the defendant obtains all the benefits of the ruling upon demurrer, for the complaint will be treated in this court as if the formal matter had been stated when the demurrer was filed and ruled upon. While the appellants indulge in numerous criticisms of the causes of action stated in the complaint, they do not directly assail its sufficiency to state a cause entitling the appellee to some relief. If, as insisted by counsel, there could be no recovery for tearing down the first substructure, there is little doubt that, under the contract sued upon, a cause of action existed for building one of the substructures, regardless of any conclusion as to the power of the superintendent to bind the county for extra work, or the unnecessary destruction of work done under and according to the written contract.

Before considering the causes for a new trial, it seems important that we should determine the right of the appellee to recover for the alleged extra work in tearing down the first substructure, and in building the second. As already stated, it was the theory of the appellee's action that he had completed the first substructure, in all respects, according to the plans and specifications, and that the agent of the appellants, for deficiencies existing by reason of the insufficiency of the plans and specifications, and not from a noncompliance with such plans and specifications, ordered and required the appellee to take it down, and further directed and required another to be built, suitable for the purposes intended, which second structure was accepted by the appellants. If this theory of the complaint is supported by the evidence, why should the appellee have failed to recover? The appellants urge that the superintendent had no power to bind the county by such orders; that, therefore, the destruction of work done in compliance with the contract was as if voluntarily done; and that as the contract provided for the removal by the appellee of all defective materials and workmanship condemned by the engineer, at his own expense, and no provision existing in the contract for the removal of materials and workmanship in accordance with the contract, there could be no recovery. The question of the power of those chosen by boards of commissioners to superintend the construction of public works, and to direct that additional labor and materials, not included within the written contracts, be done and furnished, and to bind the counties by such action, is not new in this state. Board of Com'rs v. Byrne, 67 Ind. 21;Bass Foundry & Mach. Works v. Board of Com'rs of Parke Co., 115 Ind. 234, 17 N. E. 593;Board v. Hill, 122 Ind. 215, 23 N. E. 779; Board of Com'rs of Gibson Co. v. Motherwell Iron & Steel Co., 123 Ind. 364, 24 N. E. 115. These decisions sustain the conclusion that such superintendents may bind the county for work done and materials furnished beyond the provisions of the contract, and that, in the absence of any agreement as to the cost of such additional labor and material, the recovery may be for the reasonable value thereof. The case of Board v. Hill, supra, is in most respects similar to the case before us; the only difference, in principle, being that the original work was destroyed by flood, instead of becoming deficient through the insufficiency of the plans and specifications prepared by the agent of the county and adopted by the board. Recovery was maintained for the original work under the contract, and for the second work, as ordered by the superintendent and a single member of the board, upon the implied contract, and for its alleged reasonable value. In Bass Foundry & Mach. Works v. Board of Com'rs of Parke Co., supra, it was said: “When a corporation has received the money or property of an individual, under color of authority, and has appropriated it to its necessary and beneficial use, it will not be heard to assert its want of power to pay the value of what it has received, and still retains.” With equal force we think it may be said that where the county procures the work contracted for, and discovers its insufficiency, it may not obtain the labor, money, and material of another in furnishing that which is sufficient to answer the purposes of the county, and then deny its obligation to pay for it. As said in Board of Com'rs v. Byrne, supra: “Such authority in the superintendent is necessary for the county, in order that the structure may turn out to be substantial and lasting; and it is proper, in order that the contractor required to perform the extra work may have a remedy therefor. If it should be foreseen by the superintendent, after the letting of the contract, that the work, performed as contemplatedby it, would be insufficient and defective, the county might be greatly the loser, if he could not require such additional work as would make it substantial and permanent, and bind the county therefor. The contractor's obligation is to perform the work in the manner provided by the plans and specifications. If, when he has done this, it is ascertained that the substructure is not of sufficient strength and capacity to support the superstructure, shall he be required, at his own expense, in the absence of such a provision in the contract, to remove the insufficient substructure? If the commissioners have made the mistake of procuring an unsubstantial work, the contractor, who complies with his contract in executing the work, cannot be made to suffer the consequences of that mistake; and much less can he be made to construct, without additional compensation, a structure not contemplated by his contract, and of a more substantial and expensive character. The labor in taking down the unsubstantial structure in such a case is not for the breach of his contract, but for the benefit of the county, that the materials may be used in the substantial structure, and save the cost of new materials therefor.”

It is next urged that the court erred in admitting evidence of the value of the extra work and materials sued for-First, because the values of the work were provided by the written contract; and, second, because the contract provided that payments should be made upon measurements and estimates by the superintendent. The first of these objections has practically been decided, in the holding that the contract did not provide the compensation for extra work and materials, and that the recovery was upon the quantum meruit, at least for all such as was different in character from that specially contracted for. The same may be said of the second objection, and it may be added that, if the written contract did not govern this work, the provision as to measurements and...