Boyd v. Murphy
| Decision Date | 12 November 1890 |
| Docket Number | 14,255 |
| Citation | 25 N.E. 702,127 Ind. 174 |
| Parties | Boyd v. Murphy et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Feb. 4, 1891.
From the Hancock Circuit Court.
The judgment is affirmed, with costs.
S. E Urmston and J. A. New, for appellant.
C. G Offutt, for appellees.
This is an appeal from a precept issued by order of the common council of the city of Greenfield to enforce the collection of an assessment in behalf of the appellees as contractors for street improvements.
The appellant demurred to the transcript filed as the complaint, but the court overruled the demurrer and he saved an exception. He then filed an answer in three paragraphs, the second paragraph being the general denial.
The appellees submitted demurrers to the first and third paragraphs, which were sustained by the court, and the appellant reserved exceptions.
The appellant then withdrew the second paragraph of his answer, and, refusing to answer further, the court rendered judgment against him as upon a default.
The errors assigned by the appellant may be stated as follows:
1. It was error to overrule the demurrer to the complaint.
2. The ruling of the court in sustaining the demurrer to the first paragraph of answer was erroneous.
3. The court erred in sustaining the demurrer to the third paragraph of answer.
We find no substantive fact alleged in the first paragraph of answer. It alleges that the appellees constructed the work for which the assessment was made, to collect which the precept appealed from issued; that before the appellees entered upon the work the appellant gave them notice that he would not pay for the improvement, and that their contract was void.
The most that is in this paragraph of answer is indefiniteness of statement and barrenness of fact, and it is only necessary to add that it does not even tend to disclose a defence to the action.
The demurrers to the complaint and to the first paragraph of answer present substantially the same questions, and we will, therefore, confine ourselves to a consideration of the answer.
The third paragraph of answer is, in substance, that the city attorney caused notice to be given for bids from contractors for the construction of the work, in accordance with the plans and specifications under the ordinance set out in the transcript; that when the bids were opened the appellees bid was found to be $ 2.20 per lineal foot for the work, and that of John A. Dobbins $ 1.79 per foot; that with the bid of Dobbins was filed a good and sufficient bond in all respects as required by law, and his bid covered the entire work to be done the same as did that of the appellees; that the common council, recognizing that Dobbins was entitled to the contract, for the reason that his was the best bid, to avoid giving it to him, and that it might let the contract to the appellees upon their bid, by resolution resolved to let the work to the appellees if they would agree to construct gutters and sidewalks on the north side of said street to be improved, between east street and a certain bridge, and construct a certain water-way, free of cost to either the city or property-holders; that the appellees consented so to do, and they were awarded the contract; that no ordinance or resolution was ever passed by said council for the construction of said part of said sidewalk, gutters and water-way; nor was any notice given asking for bidders upon said work; that no such proposition as that made to the appellees by said resolution was ever submitted to said Dobbins or to any one else; that the cost of said additional work was $ 500, thus increasing the cost of the improvement, as...
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