Board of Commissioners of Clinton County v. Hill
| Citation | 23 N.E. 779,122 Ind. 215 |
| Decision Date | 20 February 1890 |
| Docket Number | 13,974 |
| Parties | The Board of Commissioners of Clinton County v. Hill |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Judgment reversed, at costs of appellee, with instructions to sustain the appellant's motion for new trial.
T. H Palmer and W. F. Palmer, for appellant.
J. G Adams, H. C. Sheridan and F. F. Moore, for appellee.
The board of commissioners of Clinton county, at the regular June session, 1885, ordered the construction of a stone and brick culvert across Armstrong branch, where said branch crosses South Main street, in the city of Frankfort, the culvert to extend the entire width of said street, sixty feet, and appointed James R. Brown, the county surveyor, engineer and superintendent, to prepare specifications for such culvert and, after giving thirty days' notice thereof, to receive proposals for such construction; to contract with the best bidder therefor, and to superintend the construction of said culvert; the said Brown entered upon the discharge of said duties, gave notice and received bids, and the board contracted the work to Francis M. Hill, the appellee, his being the best bid; the appellee commenced the construction of said work, under his contract; at the September term, 1885, the engineer allowed the appellee an estimate of $ 430, which the board then allowed and paid; the appellee did no more work on said culvert until 1886; in May, 1886, there came a heavy rain and washed said culvert out, and destroyed it; after the culvert was washed out it was ascertained and determined that the east and west boundaries of said street were some nine feet further east than said culvert had been located, and, upon consultation between the city authorities of Frankfort and the individual members of the board, the commissioners stated that if Hill would reconstruct the bridge at the point where desired, corresponding with the street, the county would donate him fifty dollars, and the city authorities told the appellee the city would pay him fifty dollars; appellee then reconstructed said culvert at the proper place, corresponding with the correct lines of the street. After the culvert was reconstructed, at the December term, 1886, of said board, the engineer aforesaid reported the final estimate of materials furnished, and labor performed by appellee in the construction of said culvert, the entire amount of the contract paid being $ 542.22. The board deducted $ 430 paid the appellee on the former estimate, leaving a balance of the original contract price of $ 112.24, and added $ 50, making $ 162.24, which sum said board allowed, and paid the same to said appellee. Afterwards, at a special session of the board, on the 29th day of January, 1887, appellee filed his claim, for work done on said culvert, in the sum of $ 290.20, and the board disallowed said claim. Appellee appealed to the circuit court. The board moved to dismiss said appeal, which motion was overruled and the board excepted.
It is urged that the claim is not properly itemized and dated. This objection is not well taken; the account is dated and itemized. It is further urged that the claim is for voluntary services, and hence no appeal lies. We do not think the claim, as presented, comes within the line of voluntary services for which no appeal lies from the decision of the board of commissioners; the claim is for work, and labor, and materials.
The appellee filed an amended complaint in the circuit court, to which amended complaint appellant demurred for cause that the complaint does not state facts sufficient to constitute a cause of action, which demurrer was overruled and exceptions taken, and this ruling is assigned as error.
The amended complaint is as follows:
The plaintiff, Francis M. Hill, complains of the defendant, and for amended complaint, says that the board of commissioners on the 6th day of June, 1885, at a regular session held in the auditor's office in the court-house, in the city of Frankfort, Clinton county, Indiana, entered an order of record that there be built a stone and brick culvert across Armstrong branch where the highway running south from the south end of Main street, in the said city of Frankfort, intersects and crosses said branch, said highway being a continuation of said street across said branch, said culvert to extend the entire width of said highway, and appointed James R. Brown engineer and superintendent to prepare specifications and secure proposals for the construction, after giving thirty days notice thereof, and to superintend the construction of said culvert. Afterwards, to wit, at a special session held on the 11th day of July, 1885, at the auditor's office in the court-house, in the said city of Frankfort, for the purpose of considering the proposals for the construction of said culvert as aforesaid, the board having opened and examined all the bids, found that the bid of plaintiff was the lowest and best bid, and entered an order that his bid be accepted and accepted his bid, and James R. Brown, the superintendent and engineer, was ordered to prepare the necessary contract, and said board approved the bond of said plaintiff at said meeting thereof, and contracted with him as aforesaid, a copy of said contract and of said bid on file herewith, being marked "Exhibit B," and made part of this complaint; that said plaintiff, under said contract, furnished the material and constructed said culvert under the supervision of said James R. Brown, the regularly appointed superintendent of said work, and at the September session of said board, in 1885, on the recommendation of said superintendent of said work, said board allowed the said plaintiff four hundred and thirty dollars, and on the 6th day of December, 1886, one hundred and sixty-two 24/100 dollars as a partial estimate. Plaintiff further avers that in the spring of 1886, at a time when said culvert was near completion but before it was wholly completed, an unusual flood destroyed and carried away said culvert and rendered said street impassable, and a great emergency existing for the immediate repair and reconstruction of said culvert, John Pruitt, chairman of the board of commissioners of said county, said board not being in session, directed and ordered this plaintiff to reconstruct the same, promising to pay him the same rate for all necessary labor and material as had been agreed upon in the original construction, to which plaintiff agreed and thereupon rebuilt said culvert; and plaintiff says before he commenced to rebuild said structure, it was discovered by said board of commissioners, and James R. Brown, engineer and superintendent of said work, and the city council of the city of Frankfort, a municipal corporation existing under the laws of Indiana, that said bridge was located ten feet too far west as originally constructed, and plaintiff was directed by said board of commissioners, and by said common council of said city of Frankfort, and by said superintendent of the work, to rebuild said structure ten feet further east than it was originally constructed. Plaintiff further says that under said contract he did rebuild said culvert and furnish the necessary materials for the...
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