Clark Sch. Tp. v. Grossius

• Decision Date: 25 May 1898
• Citation: 50 N.E. 771,20 Ind.App. 322
• Parties: CLARK SCHOOL TP. v. GROSSIUS et al.
• Court: Indiana Appellate Court

20 Ind.App. 322

50 N.E. 771

CLARK SCHOOL TP.

v.GROSSIUS et al.

Appellate Court of Indiana.

May 25, 1898.

Appeal from circuit court, Perry county; Edward Gough, Judge.

Action by Amelia Grossius and others against Clark school township, etc. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Sol. H. Esarey and T. S. Rollins, for appellant. Henning & Henning, for appellees.

COMSTOCK, J.

Appellees (plaintiffs be-law) brought this suit against the appellant on two warrants issued by the trustee of the township, payable to appellees,-one for $70, and the other for $33,-for five coal stoves for use in the school houses in the district. The complaint alleges that such stoves were suitable and necessary for the use of the schools in the township; that they were delivered, and ordered and retained by the township, and were worth the price, and have been in continual use since November 18, 1893, the date of the sale. Appellant answered in two paragraphs, the first being a general denial. The second alleged, in substance, that at the time of the purchase of the stoves the fund on which said orders were drawn and the said school township were in debt beyond the amount on hand and that to be derived from the current tax levy for the cumbent year; that the township trustee did not post any notices in his township setting forth that he would apply to the board of commissioners of said county, asking permission to incur said debt; that he never asked the said board for permission, nor did he ever get any permission from said board, to make said debt; and that said debt was incurred in violation of the law of the state. To this paragraph of answer, appellees demurred for want of sufficient facts. The court sustained the demurrer, to which ruling appellant excepted. A trial resulted in a judgment in favor of the appellees.

The only error assigned is the action of the court in sustaining appellees' demurrer to the second paragraph of answer. This paragraph sets out, as a defense to the action, the violation of sections 6006, 6007, Horner's Rev. St. 1897 (sections 8081, 8082, Burns' Rev. St. 1894). We do not deem it necessary to review the numerous decisions of this and the supreme court upon the authority of a township trustee. It is settled law of this state that a township trustee has no power to bind his township by contracting a debt in excess of the fund on hand to which the debt is chargeable, and of the fund to be derived from the tax assessed against his township for the year for which such debt is to be incurred, without first obtaining an order from the board of county commissioners as provided in said sections 6006 and 6007 (sections 8081 and 8082). Boyd v. School Tp., 123 Ind. 1, 23 N. E. 862, was an action in which the township trustee, in behalf of the township, had executed a promissory note, whereby the school township promised to pay to the plaintiffs a specified amount for school furniture therein described. The evidence disclosed that the township trustee contracted the debt mentioned in the complaint in violation of sections 6006 and 6007 (sections 8081 and 8082). Mitchell, J., speaking for the court, said: “In a case like the present, when it fairly appears that the contract was invalid for want of a compliance with the statute, the right to recover does not rest upon the contract, but upon the fact that the township received and enjoyed the benefit of the property, suitable and necessary for the use of schools.” In Miller v. School Tp., ...