Hatfield v. Rooker
| Decision Date | 02 April 1914 |
| Docket Number | 8,244 |
| Citation | 104 N.E. 798,56 Ind.App. 1 |
| Parties | HATFIELD ET AL. v. ROOKER ET AL |
| Court | Indiana Appellate Court |
From Hamilton Circuit Court; Ernest E. Cole, Special Judge.
Action by Charles C. Hatfield and another against Dora E. Rooker and another. From a judgment for defendants, the plaintiffs appeal.
Affirmed.
Newberger Richards, Simon & Davis and Joseph A. Roberts, for appellants.
W. V Rooker, for appellees.
Appellants brought this action against appellees William V. and Dora E. Rooker, on a contract, to recover a balance claimed to be due them on account of an electric wiring and bell system alleged to have been installed by them in a residence erected by appellees on the farm of appellee Dora E. Rooker.
The amended complaint was in three paragraphs, the first upon quantum meruit as for work and labor done and materials furnished at appellees' special instance and request; the second upon a written contract for the labor and materials, and the third upon a parol contract on the same account. Appellees' separate demurrers to each paragraph of the complaint were overruled. Appellees then answered separately and severally in three paragraphs, the first a general denial; second, a plea of payment; and third, a counterclaim setting up a contract in writing between appellee William V. Rooker and appellants, who were partners doing business under the firm name of Hatfield Electric Company, whereby the latter agreed to furnish all materials and perform all labor necessary to construct and complete in all details ready for use, the electric wiring and bell system for a residence near the city of Noblesville, Indiana, the work to be in accordance with drawings and specifications prepared by an architect, and copies of which were furnished appellants. The work and labor to be performed and materials to be furnished in the performance of the contract were the same as described in the complaint in this action. It is further averred that thereafter appellants entered upon the performance of the work and placed same under the control of some incompetent workmen; that appellants and their "said workmen neglected, failed and refused to comply with the drawings and specifications for said work and to countersink the conduits of, for and within which the electric wires were to be contained but left said conduits exposed and in the way of the workmen and where they were and are dangerous, unsightly and useless; and further, * * * likewise neglected, failed and refused to make and complete the fittings and connections for said work or any part thereof and to construct said lines of conduit to its main connection." Appellee William V. Rooker objected to the manner of doing the work and appellants agreed to correct the deficiencies of their workmen. Relying thereon Rooker paid them $ 200 on the contract; that after receiving the payment appellants neglected and refused to correct the deficiencies and to complete the performance of the contract; that the conduits remain incomplete and disconnected, exposed, unsightly and dangerous, and such work and labor done and materials furnished are by reason of the premises wholly useless and worthless and no part of same has ever been accepted by appellees or either of them. At the time of making the contract, appellants executed their bond in writing to William V. Rooker, whereby they undertook and agreed to protect and indemnify him against all loss and damage by reason of their failure to perform same; that it will cost "said Rooker and these defendants (appellees) to correct said wrongs and deficiencies and to install properly and efficiently said electric wiring and bell system according to said contract the sum of one thousand dollars, and that said work done by plaintiffs is worth $ 1,000 less than it would have been if it had been done according to said contract"; that Rooker has performed all conditions of the contract on his part and appellees demand judgment for their damages in the sum of $ 1,000 with all other proper relief. Copies of the contract and bond are made exhibits to this paragraph of answer. The court overruled a demurrer to the third paragraph of answer and appellants then filed a reply thereto in general denial.
The issues joined were tried by the court, a special finding of facts made, and conclusions of law stated thereon against appellants on their complaint as to both appellees; that appellee Dora E. Rooker was entitled to recover her costs from appellants. The third conclusion of law reads as follows: "That upon the issues joined upon the counterclaim, being the so called third paragraph of answer, the defendant, William V. Rooker, is entitled to have and recover of the plaintiffs the full penalty of their said bond, to-wit: Three Hundred Fifty-four ($ 354.00) Dollars, together with his costs." Judgment was rendered in accordance with the conclusions of law.
The errors assigned for a reversal are: (1) The overruling of appellants' demurrer to the counterclaim. (2) Error of the court in its third conclusion of law. (3) The overruling of appellant's motion for a new trial.
It is first insisted by appellants that the court erred in overruling the demurrer to the counterclaim or third paragraph of answer. At the trial of the cause, the counterclaim was dismissed as to Dora E. Rooker, so that if any error was committed by the ruling in her favor on the demurrer, it was made harmless by the dismissal. With respect to William V. Rooker, it is insisted that the counterclaim is obnoxious to a demurrer because it does not specifically charge that he sustained "any loss cost and damages" as indemnified against in the condition clause of the bond, upon which his right of action was based. The counterclaim is by no means a model pleading. It charges that appellants wholly failed and refused to perform the work and labor in conformity with their written contract and the plans and specifications made a part thereof; that it would cost Rooker $ 1,000 to correct the wrongs and deficiencies of appellants, ending with the following demand: "Wherefore defendants demand judgment for their damages in the sum of one thousand dollars." If by fair inference damages to William V. Rooker are shown, the demurrer was properly overruled. There can be but one reasonable inference drawn from the language above quoted, and when so drawn the charge is sufficient to withstand a demurrer under the rule in Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99.
It is earnestly urged that the court erred in its third conclusion of law for the reason, as stated that it is not based on facts which are properly found in the special findings within the issues. A party must recover secundum allegata et probata, or not at all. It is insisted that the facts found in special findings Nos. 20-24, inclusive, are not within the issues. It has been held repeatedly that facts found which are not within...
To continue reading
Request your trial