Dewey v. State ex rel. McCollum

• Decision Date: 30 October 1883
• Docket Number: 10,035
• Parties: Dewey et al. v. The State, ex rel. McCollum, et al
• Court: Indiana Supreme Court

91 Ind. 173

Dewey et al. v. The State, ex rel. McCollum, et al

No. 10,035

Supreme Court of Indiana

October 30, 1883

From the Marion Circuit Court.

The judgment is affirmed, with costs.

O. T Boaz, N. B. Taylor, F. Rand and E. Taylor, for appellant.

D. V Burns and C. S. Denny, for appellees.

OPINION

Howk J.

The first error complained of in this court by the appellants is the overruling of their demurrer to the complaint of the appellee's relator, Thomas J. McCollum. In his complaint the relator, complaining of Austin C. Dewey, James E. Twiname, J. Kearney Graham, Arthur Mueller and William Baird, the appellants, and Samuel Pfendler, Isaac Golden, George Thomeyer, Robert Means, Martin V. Springer, Susan Pauley, Margaret J. Rock, James J. McCollum, George Stephens, George W. Crossen and Henry Jenkins, who are named appellees in the assignment of errors, as defendants, alleged, in substance, that, on October 7th, 1879, the appellants Dewey, Twiname and Graham entered into a contract in writing with the board of commissioners of Marion county, of the tenor following, to wit:

"Articles of agreement made and entered into this 7th day of October, 1879, by and between the commissioners of Marion county, Indiana, of the first part, and Austin C. Dewey, James E. Twiname and J. Kearney Graham, all of Marion county, Indiana, of the second part, witnesseth: That, for and in consideration of the payments and covenants, hereinafter mentioned, to be made and performed by said commissioners, the said party of the second part hereby promise and agree to grade and gravel a road, known by the name of the William A. Anderson et al., or Acton, free gravel road, in Franklin township, Marion county, Indiana, according to the directions of the engineer in charge of the work, the said work to be finished and ready for travel over the road on or before January 1st, 1880. No charge shall be made by the party of the second part for any hindrance or delay, or loss on account of bad weather, or from other causes, during the progress of the work, but [it] may entitle them to such extension of time allowed for the completion of the work so delayed, and said time to be determined by the engineer. The said party of the second part shall not transfer this contract, or any part thereof, without the consent in writing of the commissioners. In consideration of the fulfilment, by said party of the second part, of the foregoing provisions of this contract, the commissioners of Marion county hereby promise and agree that they will issue to said party of the second part, or cause the same to be issued, gravel road seven per cent. bonds of Marion county, said bonds to call for the payment of all work at the following prices, to wit: For gravelling fifteen cents per cubic yard; for gravel fifty cents per cubic yard; and for timber for culverts twenty-five dollars per one thousand feet, board measure. Partial payments may be asked for and received on estimates made by the engineer; such payments, however, shall be but ninety per centum of the full value of the work performed, and when it shall be paid for in full, together with any sums reserved from previous estimates. As witness our hands and seals."

(Signed by each of the county commissioners and each of the party of the second part.)

The relator further alleged that the board of commissioners demanded and required of the appellants Dewey, Twiname and Graham, as a pre-requisite to entering into the foregoing contract with them, that they should file a bond with approved security, conditioned, among other things, that they would pay all claims for materials furnished and labor performed in the construction of the road in such contract mentioned; that in pursuance of such requirement, and in consideration that such contract be let to them, Dewey, Twiname and Graham, they prepared, signed and filed, in conjunction with their co-appellants, Mueller and Baird, as their sureties, with the board of commissioners, their bond, of the tenor following, to wit:

"Know all men by these presents, that we, Austin C. Dewey, James E. Twiname and J. Kearney Graham, as principals, and Arthur Mueller and William Baird, as sureties, all of Marion county, State of Indiana, are firmly bound unto the State of Indiana in the penal sum of three thousand dollars, for the payment of which well and truly to be made, we bind ourselves firmly by these presents, this 6th day of October, 1879.

"The condition of the above obligation is such that whereas the board of commissioners of Marion county, State of Indiana, are about to let a contract for the grading and gravelling of the William A. Anderson et al. free gravel road, in Franklin township, in said county; and whereas the above named Dewey, Twiname and Graham have filed a proposal for said work with the surveyor of the said Marion county:

"Now, therefore, if the said board of commissioners shall award the said Dewey, Twiname and Graham the contract for said work, and the said Dewey, Twiname and Graham shall promptly enter into contract with the said board of commissioners for said work, and shall well and faithfully perform the same in all respects according to plans and specifications adopted and on file with this bond, and according to the time, terms and conditions specified in said contract to be entered into, and shall promptly pay all debts incurred by them, in the prosecution of said work, including labor, materials furnished and boarding the laborers thereon, then this obligation shall be void, otherwise to remain in full force, virtue and effect."

(Signed and sealed by each of the obligors named in such bond.)

The relator further said, that after the execution of such bond and contract, the appellants Dewey, Twiname and Graham, as such contractors, employed defendant James J. McCollum to haul gravel and place the same on said road, agreeing to pay him for his work and labor what the same might be reasonably worth; and that, in pursuance of such employment, the said James J. McCollum hauled and placed on said road 1682 yards of gravel, which was reasonably worth ten cents per yard, etc. The complaint then states in detail that the appellants Dewey, Twiname and Graham, in the performance of their said contract, became indebted to each of the defendants whose names appear as appellees in the assignment of errors, in certain named sums, either for work done or for materials furnished, by them respectively, for said contractors, in the construction of such free gravel road; and it was alleged, that before the bringing of this suit each of the defendants (named appellees) had assigned, for value, his or her account for such work or materials to the State's relator, and each of them was made a defendant to answer as to such assignment; that the relator and the defendants (named appellees) had notified the appellants Mueller and Baird, the sureties in such bond, that they accepted the provisions thereof in their favor, and demanded payment of the several sums of money theretofore mentioned; and that the said sums of money remained due and wholly unpaid. Wherefore, etc.

Appellants' counsel earnestly insist that the board of commissioners of Marion county were not authorized, by the statutes in force at the time, to enter into the contract with the appellants Dewey, Twiname and Graham, mentioned in the relator's complaint; and that such contract being ultra vires and void, the bond in suit by the relator, in this cause, is necessarily void. On the other hand, the relator's counsel contend that the county board had full power and authority, under the statutes then in force, to enter into the contract mentioned; but that, even if such contract were ultra vires and void, the appellants and each of them were estopped, by the recitals in the bond in suit, to call in question or deny the validity of such contract.

It is manifest, we think, that the contract set out in the relator's complaint was made, or intended to be made, by and between the board of commissioners of Marion county and the appellants Dewey, Twiname and Graham, under, pursuant to and in conformity with the provisions of "An act authorizing boards of county commissioners to construct gravel, macadamized, or paved roads, upon petition," etc., approved March 3d, 1877. In section 1 of this act (sec. 5091, R. S. 1881), it is provided as follows:

"The board of commissioners of any county in this State shall have power, as hereinafter provided, to lay out, construct, or improve, by straightening, grading, draining (in any direction required to reach the most convenient and sufficient outlet), paving, gravelling, or macadamizing any State or county road, or any part of such road, within the limits of their respective counties."

Under this statute, there can be no doubt, we think, of the jurisdiction of the county board over the subject-matter of the contract with the appellants Dewey, Twiname and Graham, for the grading and gravelling of the William A. Anderson et al., or Acton, free gravel road, within the limits of Marion county. The county board was clothed by the statute with original jurisdiction, and required to exercise powers and duties, judicial in their nature, over and in relation to the construction of such free gravel road. Million v. Board, etc., 89 Ind. 5. The proceedings of the county board, which led to the execution of the contract, set out in the complaint, are not before us; but it may well be assumed, the contrary not appearing, that these proceedings were regular and in conformity with the statute, and that the proposed work was properly and legally let to the appellants Dewey, Twiname and Graham, as the lowest and best bidders therefor.

In section 5 of the aforesaid act of March 3d,...