James I. Barnes Const. Co. v. Washington Tp. of Starke County, No. 19721

Docket NºNo. 19721
Citation134 Ind.App. 461, 184 N.E.2d 763
Case DateSeptember 04, 1962
CourtCourt of Appeals of Indiana

Page 763

184 N.E.2d 763
134 Ind.App. 461
JAMES I. BARNES CONSTRUCTION COMPANY, a Co-Partnership, Appellant,
v.
WASHINGTON TOWNSHIP OF STARKE COUNTY, Indiana, and
Washington School Township of Starke County,
Indiana, Appellees.
No. 19721.
Appellate Court of Indiana. Division No. 1.
Sept. 4, 1962.
Rehearing Denied Oct. 19, 1962.

[134 Ind.App. 463] Nichols & Nichols, Knox, Stevens & Wampler, Plymouth, for appellant.

[134 Ind.App. 464] Paul Reed, Knox, for appellees.

MYERS, Judge.

This is an action commenced by appellant, James I. Barnes Construction Company, a partnership, to recover the last payment due under a construction contract for the erection of a grade school building in Washington Township, Starke County, Indiana. Appellees filed an answer and cross-complaint asking damages for defective construction work, and alleging that the engineer's certificate was not issued in the exercise of honest judgment and was issued through gross mistake of fact.

Page 764

A trial by jury was had resulting in a verdict in favor of appellees and against appellant. Damages were assessed at $22,500. The court rendered judgment upon the verdict in favor of appellees for the full amount of the damages. Appellant duly filed its motion for new trial, which was overruled, and this appeal followed.

The evidence most favorable to appellees reveals the following:

On November 12, 1958, appellees, by the township trustee and the township advisory board, entered into a written agreement with appellant for the construction of a school house according to certain plans and specifications prepared by a firm of professional engineers registered in Indiana, known as William H. Kashner & Associates. It was provided that appellant was entitled to final and complete payment upon receipt of an engineer's certificate of substantial completion. The contract price was in the total sum of $143,878. Payment thereof was to be made by the township trustee.

Thereafter work on the building was commenced and continued throughout the winter, spring and summer[134 Ind.App. 465] of 1959. An employee of Kashner & Associates, by the name of Zechiel, supervised the job and was responsible for its completion. Some time about August 21, 1959, there was a meeting at the school consisting of Mr. Kashner, Zechiel, the township attorney, the advisory board members, and the township trustee. At that time they inspected the building and in particular discussed the floors. The trustee said he would not accept the floors because they were composed of poured concrete which was very uneven. Appellant's representatives said they would do their best to straighten them out, and suggested the use of an asphalt compound called Sonomend. Subsequently, work was done on the floors with the use of Sonomend in an attempt to level them.

On September 8, 1959, a final certificate of payment was issued to the trustee on behalf of Kashner & Associates, signed and delivered by Zechiel. It showed the value of work done and materials furnished as being in the sum of the contract price, which was $148,130. Previous payments were shown to be $131,359.50, leaving an amount due of $1,957.50 for the contractor as of september 8, 1959, and a balance due of $14,813 to be paid within sixty-one days.

The school was supposed to have been open to students on September 8, 1959, but because work continued to be done on the premises during the following week, the school was not officially opened until September 14, 1959. All other schools in the vicinity had commenced the week of September 8th.

After receiving the engineer's certificate, the trustee paid Kashner & Associates the balance due them, but refused to pay apopellant its balance due on the advice of the advisory board and his attorney.

[134 Ind.App. 466] Appellant argues that the verdict of the jury was not sustained by sufficient evidence. In support of this argument, appelland claims that the condition precedent to final payment was met when the engineer's certificate was issued on September 8, 1959; that, while this is not conclusive as to substantial performance on the part of the contractor, it must be regarded as prima facie correct, which can only be overcome by a showing of fraud or mistake; that this burden rested with appellees, and that they failed to show by competent evidence that there was such fraud or mistake.

It is a rule of law in Indiana that where a contract provides that work shall be done to...

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14 practice notes
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 de julho de 1980
    ...Co. v. U.S. Fidelity, etc. Co. (1919), 70 Ind.App. 537, 123 N.E. 703, 705, and James I. Barnes Const. Co. v. Washington Township (1962), 134 Ind.App. 461, 184 N.E.2d 763, Our courts apparently have not heretofore confronted a contract wherein an architect's or engineer's certificate was not......
  • Finish Line v. J.F. Pate & Assocs. Contractors, Inc., 2100006.
    • United States
    • Alabama Court of Civil Appeals
    • 17 de fevereiro de 2012
    ...Corp. v. T.A. Loving Co., 94 N.C.App. 392, 402, 380 S.E.2d 796, 803 (1989), quoting in turn Barnes Constr. Co. v. Washington Twp., 134 Ind.App. 461, 466, 184 N.E.2d 763, 764–65 (1962)). Because Finish Line neither alleged nor submitted evidence indicating that the architect's decision was t......
  • Clack v. State, Dept. of Public Works, Division of Highways
    • United States
    • California Court of Appeals
    • 20 de agosto de 1969
    ...Terminal Constr. Corp. v. Bergen County, etc., supra, 113 A.2d at pp. 801, 804; James I. Barnes Const. Co. v. Washington Township (1962) 134 Ind.App. 461, 184 N.E.2d 763, 764--766; see generally, Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal.L.Rev. 1867 (1966). The prese......
  • Bolton Corp. v. T.A. Loving Co., No. 8810SC1292
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 5 de julho de 1989
    ...N.C.App. 400] (engineer's certificate required before owner obligated to make payment); Barnes Construction Co. v. Washington Township, 134 Ind.App. 461, 184 N.E.2d 763 (1962); see Restatement 2nd Contracts § 227 comment In Laurel, the contractor sued the owner for amounts allegedly due und......
  • Request a trial to view additional results
14 cases
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 de julho de 1980
    ...Co. v. U.S. Fidelity, etc. Co. (1919), 70 Ind.App. 537, 123 N.E. 703, 705, and James I. Barnes Const. Co. v. Washington Township (1962), 134 Ind.App. 461, 184 N.E.2d 763, Our courts apparently have not heretofore confronted a contract wherein an architect's or engineer's certificate was not......
  • Finish Line v. J.F. Pate & Assocs. Contractors, Inc., 2100006.
    • United States
    • Alabama Court of Civil Appeals
    • 17 de fevereiro de 2012
    ...Corp. v. T.A. Loving Co., 94 N.C.App. 392, 402, 380 S.E.2d 796, 803 (1989), quoting in turn Barnes Constr. Co. v. Washington Twp., 134 Ind.App. 461, 466, 184 N.E.2d 763, 764–65 (1962)). Because Finish Line neither alleged nor submitted evidence indicating that the architect's decision was t......
  • Clack v. State, Dept. of Public Works, Division of Highways
    • United States
    • California Court of Appeals
    • 20 de agosto de 1969
    ...Terminal Constr. Corp. v. Bergen County, etc., supra, 113 A.2d at pp. 801, 804; James I. Barnes Const. Co. v. Washington Township (1962) 134 Ind.App. 461, 184 N.E.2d 763, 764--766; see generally, Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal.L.Rev. 1867 (1966). The prese......
  • Bolton Corp. v. T.A. Loving Co., No. 8810SC1292
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 5 de julho de 1989
    ...N.C.App. 400] (engineer's certificate required before owner obligated to make payment); Barnes Construction Co. v. Washington Township, 134 Ind.App. 461, 184 N.E.2d 763 (1962); see Restatement 2nd Contracts § 227 comment In Laurel, the contractor sued the owner for amounts allegedly due und......
  • Request a trial to view additional results

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