Beecher v. City of Terre Haute
| Decision Date | 09 February 1956 |
| Docket Number | No. 29239,29239 |
| Citation | 132 N.E.2d 141,235 Ind. 180 |
| Parties | Samuel E. BEECHER, Jr., Appellant, v. CITY OF TERRE HAUTE, Indiana, Common Council of the City of Terre Haute, Indiana, Ralph Tucker, Mayor of the City of Terre Haute, Indiana, Raymond F. Thomas, Albert Ellis and Ernest J. Zwerner, Members of the Board of Public Works and Safety of the City of Terre Haute, Indiana, Raymond J. Kearns, and Joseph Candelori, Doing Business under the Name and Style of Sanitary Garbage Collection, American Casualty Company of Reading, Pennsylvania, Appellees. |
| Court | Indiana Supreme Court |
Samuel E. Beecher, Jr., Terre Haute, for appellant.
Ernest J. Zwerner, Gambill, Dudley, Cox, Phillips & Gambill, John A. Kesler, Terre Haute, Hickam and Hickam, Spencer, for appellees.
This is an appeal from a judgment entered on special findings of facts and conclusions of law denying appellant an injunction to prohibit rescission of a contract for removal of garbage for the City of Terre Haute. The assignment of errors here charged the trial court erred in overruling appellant's motion for a new trial. The sole cause for the motion for new trial is 'the decision of the court is contrary to law.' The plaintiff's third amended complaint pleaded as an exhibit Special Ordinance No. 3 of 1951, passed by the Common Council of the City of Terre Haute the 8th day of February, 1951, and approved by the Mayor the 10th day of February, approving a contract, which incorporated specifications therefor, as executed by the Board of Public Works and Safety and the Mayor in behalf of the City, and Raymond J. Kearns and Joseph Candelori, doing business as Sanitary Garbage Collection, hereinafter referred to as the contractors, whereby the contractors agreed to collect, remove and dispose of garbage in said city for a period of five years from the 11th day of March, 1951, for which the city promised to pay the sum of $29,747 per year.
The third amended complaint further pleaded as an exhibit Special Ordinance No. 18 of 1953, which approved an agreement to surrender the contract and release the parties from performance thereof and released the surety on the performance bond, the contract of rescission to become effective when a new contract was entered into for the collection of garbage. This second ordinance was passed the 15th day of September, 1953, and approved by the Mayor September 24, 1953. The contract for rescission contained many recitals concerning the effect of Chapter 236 of the 1953 Acts, § 16-1726 et seq., Burns' 1950 Replacement, Supp., which, among other things, changed the method of feeding garbage to swine by requiring that it be cooked one-half hour at 212 degrees Fahrenheit before being used as feed. The recitals assumed that additional expenditures would be necessitated in order to comply with said Act, which were not anticipated or contemplated by the parties at the time the first contract was executed that the City would have to adopt many new specifications for the collection and disposal of garbage, and that the Act and the new specifications would require a new contract between the City and the contractors to collect and dispose of garbage.
Section 9 of the Act, § 16-1734, Burns' 1950 Replacement, Supp., provides as follows:
'Any contract for the sale or use of uncooked garbage as feed is hereby declared to be detrimental to the health of the people of the state of Indiana, and for this reason any such contract is declared to be in violation of the public policy of the state and is hereby declared to be invalid and of no force and effect.'
The special findings of the trial court found that the appellant was a resident, freeholder and taxpayer of the City of Terre Haute, found the execution and enactment of the contract and Ordinances as pleaded by appellant, and the performance bond in the sum of $29,747 with a corporate surety thereon. By finding No. 7 the trial court found that no fraud, misrepresentation or bad faith was involved in the passage of the second ordinance and 'That such ordinance by its terms does indicate that probably a new contract would be for a greater amount to be paid to the contractor than that provided for in the original contract but there is no evidence that the taxpayers and residents of Terre Haute will not receive better or more...
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