Bd. of Comm'rs v. Taylor

• Decision Date: 04 February 1890
• Citation: 123 Ind. 148,23 N.E. 752
• Parties: Board of Commissioners v. Taylor et al.
• Court: Indiana Supreme Court

123 Ind. 148

23 N.E. 752

Board of Commissioners

v.Taylor et al.¹

Supreme Court of Indiana.

Feb. 4, 1890.

Appeal from circuit court, Jay county; A. A. Chapin, Special Judge.

Elliott and Coffey, JJ., dissenting.

Bosworth & Snyder, for appellant. Taylor & Hartford, for appellees.

Berkshire, J.

The appellees sued the appellant upon the following contract: “This memorandum of agreement, made this day between the board of commissioners of Jay county, of the first part, and Taylor and Hartford, of the second part, witnesseth: That the party of the first part has this day employed and hired the party of the second part as county attorney for Jay county, in the state of Indiana, for a period of three years from the 5th day of December, 1887; the said party of the second part hereby agreeing to attend to all litigations in which the board of commissioners of Jay county is a party, in any of the courts of the state of Indiana, and at all times to render and give the board of commissioners of Jay county, or any member thereof, legal advice at their reasonable request, and also to legally advise and direct any officer of said county of Jay, as they may reasonably request, from time to time, on all matters of law pertaining to their said offices. In consideration of such legal services as aforesaid, the party of the first part, the board of commissioners of Jay county, promise and agree to pay the party of the second part, Taylor and Hartford, the sum of two hundred dollars per year, payable quarterly, and, in case they have to go to any other county to litigate any action in which the board of commissioners is a party, to pay their reasonable expenses, including railroad fare and board, incurred in attending to such litigation. In witness whereof, the party of the first part and the party of the second part have hereunto set their hands and seals this 14th day of September, 1887. L. J. Craig. R. McKinley. Taylor & Hartford.” The complaint is in two paragraphs, to which demurrers were addressed and overruled by the court, and one of the errors assigned rests upon the ruling of the court in overruling said demurrer; but, as counsel for the appellant waive the alleged error in their brief, we are not called upon to consider the questions thereby raised. The appellant answered the complaint in three paragraphs, the first being a general denial. Demurrers were addressed to the second and third paragraphs. The demurrer to the second paragraph was overruled, and the demurrer to the third paragraph sustained, and exceptions taken. At the request of the appellant, the court made a special finding, and, upon the facts found, stated, as conclusions of law, that the contract was valid and binding upon the appellant, and that the appellees were entitled to recover the sum of $50. The appellant excepted to the conclusions of law, and judgment was rendered for the appellees. The substance of the third paragraph of answer is about as follows: At the time the contract mentioned in the complaint was entered into, the board had in its employ, as its attorney and legal adviser, one John M. Smith, whose term of employment continued until the ------ day of December, 1887, at which date the board would be reorganized, the term of one of its members expiring and that of another commencing; that the said contract was an employment for a period of time commencing in the future, and after the reorganization of the said board, and was executed for the purpose, and with the intention, of binding the board as it would be organized on said ------ day of December, 1887, to accept the services of legal advisers not of its own selection; that appellees never assumed the duties of county attorneys under the said contract; and that the board, as thereafter constituted, had employed Thomas Bosworth as its legal adviser, who is still serving in that capacity.

The answer was not skillfully drawn, and is not specific in its averments. If the averments in the answer were as broad as the facts stated in the special finding, (not in detail, but as would be proper in pleading,) the questions intended to be presented could be considered with much more satisfaction by this court. In considering the answer, we must not overlook the character of the contract which is the foundation of the action. The contract, to say the least of it, is a remarkable one, entered into under unusual circumstances, and which would seem to indicate that the motive which prompted its execution was not the welfare of the public. By its terms and conditions the services of the appellees are contracted for for a period of three years from December 6, 1887, and at a time when the board had an attorney employed whose term of service would not expire for three months, and not until after the reorganization of the board, as stated in the answer. We know, as a matter of law, that within the time over which the employment, under the contract, extended, the board must be reorganized at least three times because of the expiration and commencement of the terms of its members; that before the said 6th day of December, 1890, there will not be a single member of the board whose term had commenced, and was running at the date of the contract, unless thereafter re-elected. It is admitted by the demurrer that the contract was entered into for the purpose and with the intention, of binding the new board so to speak, to accept the services of legal advisers not of its own choosing. If the contract, such as it is, and entered into for the purpose stated in the answer, is not contrary to public policy, then the demurrer was properly sustained to the answer; but, if not a valid and binding contract, for the reason that it is against public policy, the demurrer should have been overruled.

In considering this...