Indianapolis Northern Traction Co. v. Brennan
| Decision Date | 18 February 1909 |
| Docket Number | 21,010 |
| Citation | 87 N.E. 215,174 Ind. 1 |
| Parties | Indianapolis Northern Traction Company et al. v. Brennan et al |
| Court | Indiana Supreme Court |
Rehearing Denied December 7, 1909, Reported at: 174 Ind. 1 at 41.
Motion to Retax Costs Sustained December 7, 1909.
Motion to Strike Out Items of Cost Sustained March 31, 1910.
From Howard Circuit Court; J. F. Elliott, Judge.
Suit by James J. Brennan and another against the Indianapolis Northern Traction Company and others. From a decree for plaintiffs and for certain cross-complainants, defendant company and others appeal.
Reversed in part. Affirmed in part.
J. A Van Osdol, Blacklidge, Wolf & Barnes, Miller, Shirley & Miller and William L. Taylor, for appellants.
L. C Walker, Bell & Purdum, Smith, Duncan Hornbrook & Smith, King, Tracy, Chapman & Welles, Frank C. Cutter and A. C. Harris, for appellees.
Appellees James J. Brennan and Arthur B. Hogue, as plaintiffs below, commenced this suit to recover a money judgment and to enforce a lien against appellant Indianapolis Northern Traction Company which is alleged to be a railroad company duly incorporated and organized under the laws of this State for the purpose of constructing and operating an electric railroad extending from the city of Indianapolis, through several intervening counties, to the city of Peru, with certain lateral lines extending from the city of Kokomo, Howard county, to the city of Logansport, Cass county, and also for constructing and operating other electric traction lines from the city of Anderson, and embracing a series of other cities and towns, as mentioned in the amended complaint filed by the aforesaid parties.
The complaint is based on a working contract executed by the Indianapolis Northern Traction Company and the firm of Brennan & Nelson, contractors. By this contract that firm agreed to install and to complete what is denominated as the over-head construction of the railroad in question along the portion of appellant's line that extends from the city of Tipton to the city of Logansport. This work consists of placing poles, trolley wires and also other wires for the proper transmission of electricity as a motive power, together with all the equipment connected therewith. At the time this suit was commenced, Brennan & Hogue had acquired and succeeded to whatever rights the firm of Brennan & Nelson originally had under the contract in question. Brennan & Hogue alleged that there was due to them on the contract in suit $ 15,000. This included certain extra work and labor mentioned in the complaint, and they demanded judgment for that amount, together with a foreclosure of a mechanic's lien, notice of which having previously been filed, as required by law, in the recorder's office of the several counties through which the road extended. Other persons, in addition to appellant railroad company, were made codefendants to answer in respect to their several interests in the lien against the railroad property involved. Among these parties was appellee Jacob N. Bick. He appeared to the suit, and on September 16, 1904, filed a cross-complaint, consisting of three paragraphs, to which cross-complaint plaintiffs Brennan & Hogue and all of Bick's codefendants were made cross-defendants. Bick was the contractor for the construction of the grade of the railroad in question under two working contracts with the Indianapolis Northern Traction Company. One of these contracts bore date of December 6, 1902, and included that part of the road's grade designated as section 1, station 20, to section 16, station 980. This part extended from a point near the city of Kokomo to the city of Peru. The other contract, known as number two, bore date of March 1, 1903, and covered that part of the road between points mentioned as section station 1,100 and section station 1,740, all in Hamilton county, Indiana. Bick, by his cross-complaint, sought to recover a remainder alleged to be due to him from appellant Indianapolis Northern Traction Company, under contract for the construction of the railroad bridge, as well as other damages alleged to have been sustained by him. He also sought to foreclose a mechanic's lien to secure the payment of the amount due to him.
It will be noted that the suit was in two branches--one branch based on the complaint of Brennan & Hogue and the other founded upon the cross-complaint of Bick. Under the issues joined the two branches were tried together. The cause was submitted to the court for trial and a general finding was made, there being no request by either party for a special finding. Upon evidence given in the cause, the court found that appellees Brennan & Hogue should recover upon their complaint against the Indianapolis Northern Traction Company the sum of $ 5,044.88, and further found that they were entitled to be allowed the sum of $ 1,200 for attorney's fees--in the aggregate $ 6,244.88, and that this amount was a lien upon the property described in the complaint, and a foreclosure of the lien was decreed. On the issues joined upon the cross-complaint of appellee Bick, the court found that said cross-complaint was entitled to recover from the Indianapolis Northern Traction Company the sum of $ 57,969.02, together with attorneys' fees, making a total amount of $ 61,969.02. Of the total amount awarded in favor of Bick, the court found that he was entitled to hold and enforce a lien to the amount of only $ 52,539.34 upon the property described in the cross-complaint, and that he was entitled to a foreclosure in payment of said sum of $ 52,539.34, but denied his right to a lien upon the remainder, $ 9,429.68. Over a separate motion for a new trial by the Indianapolis Northern Traction Company, wherein it assigned statutory grounds and other reasons, the court entered its decree against said traction company in favor of the respective appellees. To review this decree appellants prosecute this appeal. The Indianapolis Northern Traction Company, separate and apart from its codefendants, assigns errors.
The two branches of the case herein may be said to present two questions in common with each other: (1) Whether, under the statute of the State of Indiana, appellees Brennan & Hogue and Bick could acquire any lien upon appellant company's electric railroad. (2) Whether we will yield to the contention of counsel for said appellant, and weigh conflicting evidence given at the trial upon the issues tendered in each branch of the case.
We here state, in substance, what is averred in the three paragraphs of the amended complaint of Brennan & Hogue on which their branch of the case was tried. The first paragraph discloses that, in order for said contractors successfully to prosecute the work undertaken by them, it was necessary that the railroad company should have all poles and overhead material on hand ready for use and the grade prepared not later than March, 1903; that immediately after entering upon the performance of their contract these plaintiffs arranged to begin work on or before the aforesaid month of March, and so notified the company; that the latter did not however have its poles, grades and other material in condition for said contractors to proceed until about the first of May, 1903, at which time they were notified to have their men at work on the job; that although said contractors complied promptly with the request of the company to begin work, they were constantly impeded, hindered and interfered with in the performance of their contract by reason of the failure of the company to furnish the necessary poles and materials at the storehouse agreed upon, and by reason of the facts that the grade was not finished and that the company's engineer capriciously required the work to be reconstructed after it had been completed in a proper manner; that because of the incomplete condition of the grade, absence of stakes, and other alleged failures on the part of the traction company to put its property in condition for the work of overhead construction, these contractors were put to unreasonable and unnecessary expense in breaking camp from time to time and moving from one place to another in order to complete the work in fragments, instead of completing it as one continuous line; that the company's engineer in charge of the work "fraudulently" failed to give the contractors estimates on the amount of work performed at the time prescribed by the contract, and that he did so with the intention thereby of compelling these contractors to abandon the work; that finally, on November 27, 1903, the company served notice on said contractors that on December 1 1903, it would take possession of the uncompleted portion of the work, because the contractors had been negligent in carrying the work forward, and that on said last-mentioned date the company did take charge of and complete the work, excluding the contractors from the performance thereof; that from time to time it developed that there was much of the construction required which was not included under the terms of the contract, for which said contractors would be entitled to extra compensation; that, in view of these conditions, and in view of the necessity of promptly performing said extra work, it was mutually agreed that the performance of the working contract, requiring all orders for such extra work to be reduced to writing, and requiring the contractors to give notice in writing of the amount of extra compensation claimed, should be mutually waived, and that, in lieu thereof, the engineer in charge would from time to time give oral directions concerning such extra work, which the contractors should thereupon proceed to do, and that the company would pay a fair and reasonable price for the performance of...
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