Illinois Surety Company v. Frankfort Heating Company
| Decision Date | 24 January 1912 |
| Docket Number | 22,091 |
| Citation | 97 N.E. 158,178 Ind. 208 |
| Parties | Illinois Surety Company v. Frankfort Heating Company |
| Court | Indiana Supreme Court |
Rehearing Denied June 26, 1912.
From Clinton Circuit Court; Joseph Combs, Judge.
Action by the Frankfort Heating Company against the Illinois Surety Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Earl F Gruber and Harry C. Sheridan, for appellant.
Joseph P. Gray, for appellee.
Appellee sued appellant on a surety bond executed by it to insure the performance of a contract entered into by one Schott and appellee, whereby Schott agreed to install the Schott Hydro-Vacuum Heating System in the heating plant of appellee, at Frankfort.
The court overruled a demurrer to the complaint, and sustained a demurrer to the second paragraph of appellant's answer. The issue was formed by the first paragraph of answer, which was a general denial. The cause was tried by a jury, resulting in a verdict of $ 2,000 for plaintiff. From the judgment rendered on this verdict, appellant appeals.
The errors assigned here are the overruling of the demurrer to the complaint, sustaining the demurrer to the second paragraph of answer, overruling appellant's motion for judgment on the answers of the jury to interrogatories, and overruling the motion for a new trial.
While the complaint is lacking in definiteness and certainty, it contains sufficient facts to repel a demurrer. If the court erred in sustaining the demurrer to the second paragraph of answer, appellant has waived its right to a consideration thereof by failing to discuss the same in its brief.
The consideration for the work, as provided by the contract, was $ 4,500, to be paid in installments as the work progressed, as follows: $ 1,850 when pipes, etc., were on the grounds; $ 1,400 when the pump was on the grounds; $ 400 when connecting chamber was on the grounds; $ 400 when the work was "erected complete, ready to start;" $ 450 "as soon as the same is placed in operation by the contractor, and it is found to be in accordance with the plans and specifications, and operated successfully as hereinbefore guaranteed."
The contract further provided as follows:
"Time of completion: The work herein shall be completed and ready for operation not later than September 1st, 1908, providing the contract is accepted without delay and the contractor is not delayed by causes beyond his reasonable control."
The following provisions are set forth in the bond sued on:
The complaint, among other things, alleges that Schott entered on the performance of the contract, and endeavored to install the system in connection with plaintiff's power plant, and erected the same and tried to operate it, but after its erection and at all times since has wholly failed to operate the system or to make it work. It is alleged further that "plaintiff has made all the payments of money to said Schott as stipulated in said contract."
A fair construction of the complaint results in the conclusion that it avers that all the payments provided for in the contract were made by appellee, except the last one, which was not due until after the system had been successfully operated, as guaranteed.
Among the interrogatories submitted to the jury, and the answers thereto, are the following:
It is contended by appellant that the jury's answers to interrogatories thirteen, fourteen and fifteen established the facts that full and final payment had been made by appellee to Schott before bringing the suit, and that no notice was given to appellant prior to making final payment, and, as proviso four of the bond requires five days' notice, the facts above found are in irreconcilable conflict with the verdict.
We think counsel for appellant err in their conclusion. Considering the complaint, which alleges that the system was erected by the contractor, but that it was never made to work, and the above interrogatories and answers thereto, the inference that the last installment--$ 450--due only when the plant had been successfully operated, was never paid, if not expressly warranted, is surely not excluded. Indeed, we think the "final payment" referred to in the interrogatories was understood by the jury as the payment made when the plant was erected ready to start, as that was the last payment that became due under the allegations of the complaint. No notice was required by the proviso, until before the paying of the instalment of $ 450, due after the successful operation of the system.
Counsel for appellant also maintain that the facts, elicited by the answers to interrogatories one, two, three, seven and eleven cannot be reconciled with the general verdict, because, as appellant contends, these answers show that appellee knew on or before December 2, 1908, of the failure of the device to do the...
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