F.C. Austin Mfg. Co. v. Smithfield Tp., Dekalb Cnty.

• Decision Date: 21 February 1899
• Parties: F. C. AUSTIN MFG. CO. v. SMITHFIELD TP., DEKALB COUNTY.
• Court: Indiana Appellate Court

21 Ind.App. 609

52 N.E. 1011

F. C. AUSTIN MFG. CO.

v.SMITHFIELD TP., DEKALB COUNTY.

Appellate Court of Indiana.

Feb. 21, 1899.

Appeal from circuit court, Dekalb county; F. S. Roby, Judge.

Action by the F. C. Austin Manufacturing Company against Smithfield township, Dekalb county. There was a judgment for defendant, and plaintiff appeals. Affirmed.

F. L. Welsheimer and John F. Shuman, for appellant. J. E. & J. H. Rose, for appellee.

COMSTOCK, J.

The complaint in this cause alleges that the appellant is the holder of a promissory note and township order, issued on the 15th day of May, 1894, by one James O. Blake, the then trustee of appellant township, to one Alfred Kelly, and indorsed by said Kelly to one B. L. Blair, and by said Blair to appellant; that the note and township order is in the sum of $150 and is one of a series, and was given in part payment for two Austin road graders, the full purchase price of which was $425; that said graders were necessary, suitable, and useful for the benefit of the public highways of appellee township; that the graders were taken possession of by said appellee, and by it used for the benefit of its highways; that they were reasonably worth the sum of $425; that said note was due and unpaid; that payment had been demanded and was refused, etc. Appellee answered in five paragraphs; the first being a general denial; the second alleges that there was no consideration for the order; the third, that the purchase of the graders was wholly unnecessary; the fourth, that the purchase price was in excess of the real value of the graders; the fifth, that, at the time of the purchase of said machines and the execution of said order, the warrant sued on created a debt against the funds of the township out of which the same was payable in excess of the funds on hand, and of the funds to be derived from taxes assessed against said township for the year in which said debt was incurred, and that the appellee's trustee did not procure an order from the board of commissioners of the county authorizing him to contract the debt,-the defense set up in this paragraph of the answer being predicated upon Horner's Rev. St. 1897, §§ 6006, 6007, and Rev. St. 1881, §§ 6006, 6007 (Burns' Rev. St. 1894, §§ 8081, 8082). Appellant replied by general denial. The cause was submitted to the court without the intervention of a jury, and, upon request of appellee, a special finding of facts was made, and conclusions of law stated thereon. Appellant excepted to the conclusions of law, and moved for a new trial, and for judgment in its favor on the special finding. Both motions were overruled, and judgment rendered in favor of appellee for costs.

The specifications of the assignment of errors are that the court erred (1) in its finding of facts; (2) in its conclusions of law on the findings; (3) in overruling appellant's motion for a new trial: (4) in overruling appellant's motion for judgment on the special finding; (5) in sustaining appellee's motion for judgment on the findings. As to the first specification, it is only necessary to say that the exception to the conclusions of law concedes that the facts are correctly found. The following is a fair summary of the facts found: On May 15, 1894, James O. Blake, being the duly elected and acting trustee of appellee township, purchased of appellant's agent two road graders, and executed the orderin suit in part payment for the same. The graders were suitable, and were reasonably worth the price agreed to be paid. Said “trustee believed and considered that they were reasonably necessary for the use of appellee.” They were not needed, appellee having other and sufficient graders in said township to do all the road work of appellee; and, “had said trustee exercised reasonable care, or had he made reasonable inquiry and investigation, he would have known that it was not necessary to purchase the same.” They were received by him...