Clark School Township v. Home Insurance And Trust Company
| Decision Date | 30 June 1898 |
| Docket Number | 2,527 |
| Citation | 51 N.E. 107,20 Ind.App. 543 |
| Parties | CLARK SCHOOL TOWNSHIP v. HOME INSURANCE AND TRUST COMPANY |
| Court | Indiana Appellate Court |
From the Perry Circuit Court.
Affirmed.
Sol. H Esarey, for appellant.
Elbert M. Swan, for appellee.
Appellee brought its action against appellant, Clark school township of Perry county, Indiana, to recover the price of a policy insuring the school township for three years against loss by fire on twenty schoolhouses and school furniture, fixtures and apparatus therein, in said township, under the control, care and management of the trustee of said school township.
There were two paragraphs of complaint, the first, to recover the price at which the policy was issued, which was alleged to be its value; the second, setting forth a warrant for said price, certified therein to be due from Clark township, payable out of the special school fund, for insurance on twenty schoolhouses, to an agent, named, of the appellee, which warrant was assigned by indorsement in writing by said agent to the appellee. In each paragraph it was alleged that the appellant, by and through its trustee applied for the insurance to said agent; that thereupon the appellee issued the policy to the appellant, and delivered it to said trustee for the appellant; that since the policy was so issued it had been, and still was, a valid and subsisting insurance on said property of the appellant; that said insurance was useful, suitable and necessary for the benefit of the appellant, and was of the value stated as the price thereof; that it was delivered by the appellee to the appellant and accepted by the latter, which had ever since received and retained the benefit thereof.
There was an answer in two paragraphs, the first being the general denial. A demurrer to the second paragraph of answer was sustained, and this ruling alone is assigned as error. In this paragraph it was alleged, that at the time appellant incurred, or attempted to incur said debt, "the fund to which the same was chargeable was in debt in excess of the funds on hands and of the current year's levy, and that the defendant's trustee did not post the notices in the said township that he would ask the board of commissioners of Perry county, Indiana, for permission to incur said debt, nor did he ask the permission of the commissioners of said county, at any time, or for any purpose, to grant to said trustee any such privilege; but that he contracted said debt or pretended debt in express violation of the law of the State of Indiana." The appellant by this answer sought to base its defense upon the statute by which it is provided, that "whenever it becomes necessary for the trustee of any township in this State to incur, on behalf of his township, any debt or debts whose aggregate amount shall be in excess of the fund on hand to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred, such trustee shall first procure an order from the board of county commissioners of the county in which such township is situated, authorizing him to contract such indebtedness;" and "before the board of commissioners shall grant such order, the township trustee shall file, in the auditor's office of his county, a petition, setting forth therein the object for which such debt or debts are to be incurred and the approximate amount required, and shall make affidavit that he has caused notice to be given of the pendency of such petition, by posting notices, in not less than five public places in his township, at least twenty days prior to the first day of the session of said board." Sections 8081, 8082, Burns' R. S. 1894 (6006, 6007, Horner's R. S. 1897).
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