Cummings v. Pence

• Decision Date: 12 May 1891
• Citation: 27 N.E. 631,1 Ind.App. 317
• Parties: Cummings v. Pence.
• Court: Indiana Appellate Court

1 Ind.App. 317

27 N.E. 631

Cummings

v.Pence.

Appellate Court of Indiana.

May 12, 1891.

Appeal from superior court, Marion county; N. B. Taylor, Judge.

A. B. Cole, for appellant. Ritter & Ritter, for appellee.

Reinhard, J.

The appellant was the general contractor for the construction of a drain in Marion county, which had been established by order of the circuit court of that county, and awarded to James F. Flack, commissioner of drainage. The appellee was a subcontractor under the appellant to do the excavating. As such subcontractor he entered into a written contract with the appellant for the performance of the work, and that contract forms the foundation of this action. The only error assigned here is that the court in general term erred in affirming the judgment of the court in special term. The errors assigned in the superior court were: (1) The overruling by the court in special term of the appellant's motion for a new trial; (2) the complaint does not state facts sufficient to constitute a cause of action. The motion for a new trial contained the following causes: (1) That the decision of the court is not sustained by sufficient evidence; (2) that the decision of the court is contrary to the law; (3) that the assessment of the amount of the recovery is erroneous, being too large. The cause in special term was tried by the court, and the finding was for the appellee (plaintiff below) in the sum of $176.65.

The question presented for our decision under the first assignment of errors involves the correctness of the action of the trial court in overruling the motion for a new trial. This challenges the sufficiency of the evidence to sustain the finding. The complaint was in one paragraph, and counted upon the special written contract therein set out. The appellant's contention is that the uncontroverted evidence shows that the appellee did not complete his part of the contract within the time required, or in fact at any time; and hence, if he has any remedy at all, it is upon a quantum meruit for the value of the services performed, and not the one pursued here on the special contract. The appellant insists that the evidence shows without contradiction or conflict that none of the work was done by the appellee within the time stipulated, and that, as to some of it, viz., the straightening out of a certain “double crook” in the drain, it never was done by the appellee at all. He also claims that there was a “washout” in the ditch at a highway and railroad crossing, which caused certain damages to the work; but as to this it may as well be said right here that the evidence does not prove that this came within the purview of appellee's contract.

We proceed then to dispose of the appellant's contention that the work was not done in time. The contract provides that the work was to be commenced March 31, 1885, and completed April 30, 1885, under the direction of the appellant; and that 80 per cent. of the price of the work should be paid as the same progressed, and 20 per cent. was to be retained until the completion and acceptance of the same by the commissioners of drainage. It is insisted by the appellant that the completion of the work by April 30, 1885, is a condition precedent to the payment of the price stipulated in the contract, and that, therefore, there could be no recovery on the contract unless the work was finished within that time. We do not think the contract admits of such a construction, but our ruling is not based upon this ground. We think the appellant, if he had acquired any right of rescission or forfeiture by the failure of the appellee to complete the work within the time stipulated in the contract, has waived that right by requesting the appellee to resume the work afterwards, and by promising to pay for the same, and also by accepting the work after the specified time. The appellee testified that he had stopped working in May, because appellant did not pay as he had agreed; but that in August of the same year Cummings came to see him, and said to...