Falout v. Bd. of Sch. Com'rs of the City of Indianapolis

• Decision Date: 26 May 1885
• Citation: 1 N.E. 389,102 Ind. 223
• Parties: Falout v. Board of School Com'rs of the City of Indianapolis and others.
• Court: Indiana Supreme Court

102 Ind. 223

1 N.E. 389

Falout

v.

Board of School Com'rs of the City of Indianapolis and others.

Supreme Court of Indiana.

Filed May 26, 1885.

Appeal from Marion superior court.

Harris & Calkins and Rand & Winter, for appellant.

Harrison, Miller & Elam, for appellee.

Howk, J.

In this suit the appellant, Falout, sued the appellees, the board of school commissioners of the city of Indianapolis and the city of Indianapolis, in a complaint of two paragraphs. In the first paragraph the appellant declared upon a written agreement, executed by and between himself and such board of school commissioners, on the twenty-sixth day of March, 1884, for the erection and completion by him of a certain school-house of eight rooms, within such city of Indianapolis, in accordance with certain plans and specifications, in consideration of which such board of school commissioners were to pay the appellant the sum of $16,733 in cash, or, at their election, the sum of $16,983, payable one-half in cash as the work progressed, and the residue in the notes of such board, to be executed upon the completion and acceptance of the school-house, and payable, with 5 per cent. interest, on July 1, 1886. After setting out such agreement in the first paragraph of his complaint, Falout then alleged that he had fully kept and performed all the covenants and conditions of such agreement, on his part to be kept and performed, and had fully erected and completed such school-house to the satisfaction and acceptance of such board of school commissioners; but that such board had not kept and performed all their covenants, mentioned in such agreement, in this: that they had only paid him the one-half part of each and all of the estimates of the amount due him for work done and materials furnished by him under such agreement, made from time to time, as the work progressed, and of the final estimate at the completion of such school-house, and had wholly failed to pay him the balance of the money due him on all such estimates, under such agreement.

Falout further alleged that on the fifth day of November, 1884, and within 60 days after his completion of such school-house, he filed a mechanic's lien in the recorder's office of Marion county against the lots in the city of Indianapolis upon which such school-house was so erected by him, and against the school-house itself, which mechanic's lien was, on the same day, duly recorded in the proper record-book of such recorder's office. Falout further alleged that the city of Indianapolis claimed to have some interest in the lots upon which such school-house was so erected by him, but that, if the city had any interest in such lots, it was junior to his mechanic's lien thereon. Wherefore, he demanded judgment for $12,000 for the enforcement of his mechanic's lien, and for all proper relief.

The second paragraph of Falout's complaint was a common count, wherein he sought to recover quantum meruit for the work and labor done and the materials furnished by him at the request of such board of school commissioners in the erection and completion of the same school-house mentioned in the first paragraph of his complaint. In such second paragraph of complaint Falout alleged that the board of school commissioners undertook and promised to pay him for such work and materials what the same were reasonably worth; that such work and materials were reasonably worth the sum of $19,000, whereof such board had only paid him the sum of $8,491.50; and that the balance of the first-mentioned sum was then due and wholly unpaid. The second paragraph of complaint also contains substantially the same averments as the first paragraph in regard to Falout's mechanic's lien on the lots and school-house, and the interest, if any, claimed by the city of Indianapolis in such lots, and judgment was demanded for $15,000, for the enforcement of the mechanic's lien, and for all proper relief.

The demurrers of the city of Indianapolis, for the want of sufficient facts, were sustained by the court at special term to each paragraph of complaint. The board of school commissioners separately answered the first paragraph of the complaint, in four paragraphs, of which the first, a general denial, was subsequently withdrawn. Falout replied to the second paragraph of such answer in two special or affirmative paragraphs; to each of which the demurrers of the board of school commissioners, for the alleged insufficiency of the facts therein, were sustained by the court at special term, and to these rulings Falout excepted. His demurrers to the third and fourth paragraphs of such answer were overruled by the court, and he excepted and refused to reply thereto. To the second paragraph of complaint the board of school commissioners separately answered in a single special paragraph, to which answer Falout replied specially in a single paragraph. The demurrer of the board of school commissioners to this reply, for the alleged insufficiency of the facts therein, was sustained by the court. Falout excepted, and, refusing to amend or plead further, judgment was rendered against him for appellee's costs by the court at special term. From this judgment he appealed to the general term, and there assigned as errors each and all of the rulings of the court at special term adverse to him. The judgment at special term was affirmed by the general term. From the judgment of the general term Falout prosecutes this appeal, and, by a proper assignment of error, has brought before this court all the errors assigned by him in general term.

Appellant's counsel say in their brief: “The record presents but two questions, and each of these questions is presented by several rulings in special term.” The first question discussed by counsel is fairly presented, we think, by the alleged error of the court in sustaining the demurrer to appellant's reply to the second paragraph of the separate answer of the board of school commissioners to the first paragraph of complaint, and we will consider and decide this question as thus presented. In the second paragraph of its answer to the first paragraph of complaint, the board of school commissioners admitted the execution of the agreement set out in the first paragraph of complaint, as therein alleged, and that Falout had built the school-house under and in accordance with the stipulations of such agreement, and the board averred that at and before the time the first estimate was made, and payment thereon became due to Falout, such board not having the cash necessary to pay the contract price, and not having the prospect of such cash, nor the ability to raise the same before July 1, 1886, elected and determined to pay for such work at the price stipulated therefor, upon the plan of half cash and half in notes, namely, the sum of...