City of Greenfield v. State ex rel. Moore

• Decision Date: 21 January 1888
• Citation: 15 N.E. 241,113 Ind. 597
• Parties: City of Greenfield v. State ex rel. Moore.
• Court: Indiana Supreme Court

113 Ind. 597

15 N.E. 241

City of Greenfield

v. State ex rel.Moore.¹

Supreme Court of Indiana.

January 21, 1888.

Appeal from circuit court, Hancock county; M. E. Forkner, Judge.

Offutt & Black, for appellant. New & Jones, for appellee.

Elliott, J.

The petition of the appellee alleges that on the fourth day of September, 1884, the appellee entered into a written contract with the common council of the city of Greenfield, wherein it was agreed that he should grade and gravel Noble street in that city, and that the expense of the improvement should be collected from adjacent lot-owners, except the cost of improving street and alley crossings; that he performed part of the work described in the contract, and demanded that an estimate be ordered, but his demand was refused. A writ of mandate is prayed. Three objections are urged against the petition: First. That it does not aver that any order directing the improvement was made by the common council. Second. That it does not aver that there was an advertisement for bids. Third. That it does not aver that any bids were received. These averments are lacking, for the copy of the contract filed with the petition cannot be considered as part of it, because it does not constitute the foundation of the pleading, nor do the recitals aid the petition; for it is well settled that the material facts must be directly averred, and not stated by way of recital. We must, therefore, treat the petition as destitute of the averments referred to, and consider it as it stands upon the material facts sufficiently pleaded. This is necessarily our duty, for the reason that a demurrer admits only such facts as are properly pleaded.

We have concluded, not without some hesitation, that the petition, although not well drawn, must be considered good. It shows a contract with the municipality, and work done under it; and we think it was the duty of the common council to order the estimates, leaving the validity of the contract to be controverted by the property owners. Having entered into a contract with the appellees, valid on its face, the corporate authorities ought to put the machinery in motion to enable him to collect the compensation promised him. The city cannot be allowed to impose upon its contractor the burden of affirmatively showing the validity of its own contract where nothing more is asked of it than that the legal steps required, to enable its contractor to secure pay for his work, shall be taken by its officers. If there are objections to the validity of the contract, it is for the property owners to urge them, and the city should decline to put any obstable in the contractor's way, unless he is guilty of some wrong. It is the duty of its officers to act upon the assumption that the contract was valid, for they ought not to presume that a wrong was done by any corporate officer. It can work no injury to the city to order the estimates promised the contractor; and, as it has contracted to do this, we think it should be presumed, until the contrary appears, that the contract is enforceable. This is especially so in view of the fact that the statute provides that no question of fact shall be tried which may arise prior to the making of the contract. Taber v. Ferguson, 109 Ind. 227, 9 N. E. Rep. 723. There has, we know, been much diversity of opinion upon the question presented by the statute; but we think the better opinion is, that it is valid, and must been enforced as it is written. City v. Imberry, 17 Ind. 175;Board v. Silvers, 22 Ind. 491;Palmer v. Stumph, 29 Ind. 329;Martindale v. Palmer, 52 Ind. 411...