Board of Commissioners of County of Laporte v. Wolff

• Decision Date: 06 December 1905
• Docket Number: 20,332
• Citation: 76 N.E. 247,166 Ind. 325
• Parties: Board of Commissioners of the County of Laporte et al. v. Wolff et al
• Court: Indiana Supreme Court

76 N.E. 247

166 Ind. 325

Board of Commissioners of the County of Laporte et al.

v.

Wolff et al

20,332

Supreme Court of Indiana

December 6, 1905

Rehearing Denied March 27, 1906.

From Marshall Circuit Court; A. C. Capron, Judge.

Suit by Charles Wolff and others against the Board of Commissioners of the County of Laporte and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Frank E. Osborn and W. A. McVey, for appellants.

C. R & J. B. Collins and James F. Gallaher, for appellees.

OPINION

Montgomery, J.

This suit was brought by Charles Wolff and others, as taxpayers of the townships of Springfield, Coolspring and Michigan, in Laporte county, 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 coparty; 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 twenty-five 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 wilfully permitted said contractors to perform said work defectively and in violation of said contract, in failing properly to 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 wilfully 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 said commissioners and said contractors to permit said contractors to perform the work upon said highways in an improper, deficient and slighting manner, and contrary to the contract," etc., and that the commissioners were intending negligently, wilfully and fraudulently to accept 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, 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 conclusions of law presents the same question as their demurrer to the complaint. Ross v. Van Natta (1905), 164 Ind. 557, 74 N.E. 10; Philip Zorn Brewing Co. v. Malott (1898), 151 Ind. 371, 51 N.E. 471; Runner v. Scott (1898), 150 Ind. 441, 50 N.E. 479; Woodward v. Mitchell (1895), 140 Ind. 406, 39 N.E. 437.

The finding of facts is quite lengthy, and can not be reproduced with propriety in this opinion; but the only finding in direct support of the alleged fraudulent agreement pleaded is as follows: "The...