Board of Commissioners of Rush County v. Trees
| Decision Date | 23 April 1895 |
| Docket Number | 1,523 |
| Parties | THE BOARD OF COMMISSIONERS OF RUSH COUNTY v. TREES |
| Court | Indiana Appellate Court |
From the Shelby Circuit Court.
Judgment affirmed.
W. J Henley and L. D. Guffin, for appellant.
K. M Hord and E. K. Adams, for appellee.
The only specification of error is the overruling of the appellant's motion for a new trial. It is earnestly contended by appellee's counsel that the bill of exceptions is not properly in the record, there being no sufficient certificate of the clerk. It is true that in the clerk's certificate to the transcript there is no recital of the filing of the bill of exceptions. But the transcript does contain a record entry just preceding the bill of exceptions, which shows "that on the 24th day of August, 1894, in vacation of the Shelby Circuit Court, and within the time limited therefor by the court, the defendant, by its attorneys, filed in the clerk's office of said court its bill of exceptions herein, tendered to and signed by the Hon. William A. Johnson, sole judge of said court, at chambers, on the 21st day of August, 1894, which bill of exceptions was then and there ordered by said judge to be made a part of the record of this cause, and the same reads in the words and figures following, to wit:" (Then follows the bill of exceptions.) We think this is not only a sufficient showing of the filing of the bill of exceptions, but that it is to be commended as a model of good practice. This recital in the transcript was evidently overlooked by counsel for appellee, else we are sure they would not have urged the point. See Gish v. Gish, 7 Ind.App. 104, 34 N.E. 305; Elliott App. Proced., section 805; Richwine v. Jones, 140 Ind. 289, 39 N.E. 460.
The appellee filed a claim before the board of commissioners against the county for 2,300 cubic yards of dirt at 8 cents a yard, making $ 184, and giving credit for a balance due from him on a donation for the construction of the approach to a bridge in Rush county of $ 34, leaving, as he alleged, a balance due him of $ 150. The board disallowed the claim and the appellee appealed to the circuit court, where the cause was tried by a jury and a verdict rendered in favor of the appellee. The insufficiency of the evidence was assigned as a ground for a new trial. The account filed, which stands for the complaint in this case, proceeds upon the theory of an implied contract between the appellant and appellee.
It appears from the evidence that the board of commissioners erected the abutments and superstructure of a bridge and all of the bridge except the approaches at Webb's Ford, on a public highway in Rush county, Indiana, crossing Big Flatrock river, in 1893. There was evidence to show that the dirt for which the verdict was rendered was taken by the commissioners, in building the approaches to the bridge at the point mentioned; that the appellee told the appellant's superintendent, before the dirt was taken, that if he took the dirt, he, appellee, would claim pay for it from the county. There is also evidence to show its value. We think the evidence sufficient to support the verdict.
Appellant insists that if there was any just claim by appellee against appellant, it must be by reason of damages to his land, and that as this was a tort the present action could not be sustained. We think the evidence fairly sustains the appellee's theory of an implied contract, but if the appellant is liable in tort, the appellee would have a right to waive the tort, and sue as upon contract. 26 Am. and Eng. Encyc. of Law, 774; Furry v. O'Connor, 1 Ind.App. 573, 28 N.E. 103.
Moreover, if the agents and officers of the county committed a trespass upon appellant's land, whereby the county received certain benefits, we know of no reason why the county should not be held liable on an implied contract for the value of the dirt received.
Much stress is laid by appellant's counsel upon the fact that when appellant's superintendent got the dirt he told appellee he had no authority to make any contract for dirt, and that the commissioners would not pay for it. The appellee testified positively that he told the superintendent that if he took the dirt from where it was taken, the commissioners must pay for it, and that the superintendent replied that this was a matter between appellee and the commissioners. He stated that he told the superintendent he had already donated $ 100 for the building of the bridge, and did not propose to give any more, but would allow him to take the dirt from another place on his farm, out of a certain hill, and would give him that free of charge, but that said superintendent refused to take it from there, saying it was too far to haul it.
We know of no law that gives a county the right to take such property from a man, without compensation, simply because the agent of the county tells the owner, at the time, that the county does not intend to pay anything. Of course, if the owner consents to such an arrangement, there is nothing to keep the parties from carrying it out; but here the appellee strenuously denies that he ever assented to the taking of this property except for pay. There is sufficient evidence to support the verdict.
During the trial, the appellant offered to introduce in evidence a contract made between appellee and certain other parties on the one hand and the board of commissioners on the other, by the terms of which the appellee and said other parties agreed to build all the approaches to said bridge at their own expense, as directed by the said board, under the direction of the superintendent of construction. The second paragraph of the appellant's answer relied upon this contract as a defense. In it it is alleged that the material claimed for in the complaint is the same as that mentioned in the contract, and that nothing is due the appellee for the same.
The court sustained the appellee's objection to the introduction of this contract, and...
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