Deitrick v. Board of Commissioners of Parke County
| Decision Date | 12 December 1901 |
| Docket Number | 4,044 |
| Parties | DEITRICK v. BOARD OF COMMISSIONERS OF PARKE COUNTY |
| Court | Indiana Appellate Court |
From Parke Circuit Court; A. F. White, Judge.
Action by William A. Deitrick against the Board of Commissioners of Parke county to collect claim for extras in the construction of gravel road. From a judgment for defendant, plaintiff appeals.
Affirmed.
J. M Johns and I. L. Wimmer, for appellant.
S. D Puett and J. S. McFadden, for appellee.
The requisite number of freeholders of Washington township, Parke county, petitioned the board of commissioners, praying for the construction of a free gravel road in said township. The petition was filed and the proceedings were had under the act of March 3, 1893, and the amendments thereto, approved February 7, 1895. So far as the record shows, all the requirements of the statute were followed, and the contract for the construction of the road was let to appellant. He entered into a contract with the board of commissioners for constructing the road, and gave a bond for the faithful performance of the contract. He completed the road and was paid the full contract price for the work. He afterwards filed a claim before the board for extra work. This claim was in the form of a complaint, in two paragraphs. The board of commissioners disallowed his claim and from this action he appealed to the court below. In the latter court a demurrer to his complaint was sustained. He refused to plead further and suffered judgment for costs. Sustaining the demurrer to each paragraph of complaint is assigned as error.
It is important to notice first the salient features of the statute under which the gravel road was constructed. Section 1 provides that fifty freeholders, being citizens of a township, may petition for the road; that the question of constructing the road shall be submitted to the voters of the township; that if a majority of the voters favor the improvement, the board shall at once proceed to its construction. This section provides, however, that before an election is held, a surveyor or engineer and two disinterested freeholders shall be appointed as viewers, whose duty it shall be to estimate the cost of construction, etc., and make report thereof. The statute further directs that the viewers shall report plans, plats, and profiles of the proposed road. Section 5, as amended in 1895, provides that for the purpose of raising money to pay for such construction, the board of commissioners shall issue the bonds of the county for the full amount of the contract, and to meet the payment of such bonds a tax shall be levied upon the property of such township annually. It is also made the duty of the board to appoint a superintendent to supervise the construction. As to the several provisions of the statute cited, see acts 1895, p. 143, §§ 6924-6957, Burns Supp. 1897.
In his first paragraph of complaint, appellant avers that he made a contract to construct the road for $ 4,993; that a superintendent was appointed; that he completed the work in accordance with the contract, plans, and specifications, and to the acceptance of the board; that he did extra work not provided for by his contract; that said extra work was done at the instance and request of appellee, and that said extra work was of the value of $ 433.67.
In the second paragraph of complaint, appellant sets out in detail the various steps taken leading to the consummation of the work. Among other things, it is averred that according to the plans and specifications, it required 6,020 yards of gravel to complete the road; that appellant made his bid of $ 4,993, and entered into said contract to place said amount of gravel on the road, and by direction and order of appellee and its superintendent, appellant was required to place on the road 6,716 2/3 yards of gravel, and that the extra amount put on was of the value of $ 433.67.
It is further charged that in the original estimate of the costs for the construction of the road, the viewers included $ 400 to pay for extra work, and that said sum was included in the total costs, as originally determined by the engineer and viewers, which was estimated by them at $ 6,009.12. It is also averred that said extra work was necessary by reason of oversight and unforeseen causes at the time the viewers and engineer made their original estimate and report; that according to said original estimate, the cost of constructing said road was $ 6,009.12, and that that amount was voted authorized, and appropriated by the voters and tax payers therefor; that appellant's bid for doing said work, exclusive of extras, was $ 4,993, and that the balance of said original estimated cost, amounting to $ 1,016.12,...
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