City of Huntington v. Force

• Decision Date: 04 April 1899
• Docket Number: 18,130
• Citation: 53 N.E. 443,152 Ind. 368
• Parties: The City of Huntington v. Force et al
• Court: Indiana Supreme Court

53 N.E. 443

152 Ind. 368

The City of Huntington v. Force et al

No. 18,130

Supreme Court of Indiana

April 4, 1899

From the Whitley Circuit Court.

Reversed.

J. B Kenner and U. S. Lesh, for appellant.

George D. Parks, for appellees.

OPINION

Dowling, J.

Appellees sued the city of Huntington for moneys alleged to be due them on account of work done, and materials furnished, in the construction of certain public sewers. The complaint is in three paragraphs, the first and third being founded upon written agreements, plans and specifications which are made exhibits. The second paragraph is a common count for work and materials not called for by the contract, plans, or specifications, but alleged to have been performed, and furnished upon the order of the city engineer, or his authorized agents. Demurrers were filed to the several paragraphs of the complaint and were overruled. Appellee answered in five paragraphs, and filed a counterclaim for damages. Reply in four paragraphs. Demurrer to second paragraph of reply overruled. Trial by jury. Special verdict returned, and judgment for appellees. Exceptions to the rulings of the court were saved, and error is properly assigned upon these rulings.

The sewers which the appellees undertook to construct constituted a part of the general system of public improvements of the city of Huntington, and the contracts for their construction were entered into upon the authority of the act of March 8, 1889, known as the "Barrett Law."

The copy of the contract filed with the first paragraph of the complaint contains an agreement on the part of the appellant "to allow and pay in cash" to appellees the prices set out in the contract; and the copy of the agreement, filed with the third paragraph, states that the appellant "promises to allow" to the appellees the prices named, "payment to be made after work is completed and bonds sold."

There is no averment in either of these paragraphs that the improvement bonds had been sold, or that a fund had come into the possession of the city of Huntington out of which the claim of the appellees could be paid.

The action is brought against the city as if it were primarily and unconditionally liable for the claims of the appellees.

According to the construction put upon the act of March 8, 1889, by this court, no such primary liability exists, or can be enforced against the city.

Notwithstanding the words of the statute to the effect that the city shall be liable to the contractors for the contract price of the improvement, it is held that the city, in its corporate capacity, assumes no obligation to pay for the work. The resolutions of the common council, preliminary to the making of the contracts for the improvements, could only be such as the statute authorized; and the contracts made in pursuance of those resolutions could not charge the city with a liability not contemplated by the resolutions. The statute required that the cost of the improvements should be assessed against the lots and lands benefited thereby. It permitted the issuing of bonds in anticipation of assessments against the property...