Lake Michigan Water Co. v. United States Fid. & Guar. Co., No. 9832.

Docket NºNo. 9832.
Citation70 Ind.App. 537, 123 N.E. 703
Case DateJune 18, 1919
CourtCourt of Appeals of Indiana

70 Ind.App. 537
123 N.E. 703

LAKE MICHIGAN WATER CO.
v.
UNITED STATES FIDELITY & GUARANTY CO.

No. 9832.

Appellate Court of Indiana, Division No. 1.

June 18, 1919.


Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by the Lake Michigan Water Company against the United States Fidelity & Guaranty Company. Judgment that plaintiff take nothing, and defendant recover costs, and plaintiff appeals. Affirmed.


See, also, 116 N. E. 744.

C. R. & J. B. Collins, of Michigan City, and Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellant.

M. J. & J. P. Kenefick, of Michigan City, and McInernys, Yeagley & McVicker, of South Bend, for appellee.

[123 N.E. 704]


REMY, J.

On June 9, 1908, the Lake Michigan Water Company, appellant herein desiring to improve its water supply system at Michigan City, Ind., entered into a contract with the M. H. McGovern Company, hereinafter called the “contractor,” to make such improvement. The United States Fidelity & Guaranty Company, appellee, became surety on said contractor's bond for the faithful performance of the contract. This action is by appellant on said bond. The contractor and said guaranty company were each made defendants, but process was never served upon the former. The complaint was in two paragraphs, to each of which appellee successfully demurred for want of sufficient facts. Appellant refused to plead further, and judgment was rendered that appellant take nothing, and that appellee recover costs. The appeal is from this judgment, and the only errors assigned are based on the rulings of the court on the demurrers to the two paragraphs of complaint. Appellant in its oral argument expressly waived the error, if any, as to the court's ruling on the demurrer to the second paragraph of complaint, and rested its case on the alleged error of the court in sustaining appellee's demurrer to the first paragraph.

The first paragraph of complaint, hereinafter denominated the “complaint,” is, in substance, as follows: Appellant on June 9, 1908, entered into a written agreement with the M. H. McGovern Company, by the terms of which agreement said contractor was to furnish the materials and install in Lake Michigan a crib and intake pipe, in consideration of $50,000 to be paid by appellant, for which amount the contractor was to, and did, give a bond to secure the faithful performance of said agreement, with appellee as surety, which bond is made the basis of the action. The written agreement of the contractor, and the plans and specifications for the improvement, are incorporated in the complaint, and provide that the contractor shall furnish all labor and material, and do all the work in accordance with said plans and specifications, which, as alleged, had been prepared by appellant's engineer. The plans and specifications, in substance, provide that all materials shall be furnished and labor performed to the satisfaction of said engineer who was employed by appellant to design and supervise the construction of the work; that, in the event of discrepancy between the plans and specifications, the judgment of the engineer shall be final; that any doubt as to the meaning of the specifications shall be explained by the engineer; that any materials or work may be rejected by the engineer at any time before the...

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7 practice notes
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1980
    ...McCoy v. Able et al. (1892), 131 Ind. 417, 30 N.E. 528, 31 N.E. 453, quoted in Lake Mich. Water 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 ha......
  • School District No. 1 v. Howard, 1879
    • United States
    • United States State Supreme Court of Wyoming
    • December 10, 1935
    ...Articles 20, 31, 39 and 40 of Contract. The courts favor arbitration proceedings. 2 R. C. L. 389; Lake Michigan Company v. Company, (Ind.) 123 N.E. 703; Chatfield v. O'Neal, 93 A. 133. KIMBALL, Chief Justice. BLUME and RINER, JJ., concur. OPINION [49 Wyo. 45] KIMBALL, Chief Justice. This is......
  • Lerma v. Allstate Insurance Company, Civ. No. 4758.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • April 22, 1968
    ...the architect is a legitimate prerequisite to suit on the contract. Lake Michigan Water Co. v. United States Fidelity and Guaranty Co., 70 Ind.App. 537, 123 N.E. 703 (1919); Maitland v. Reed, 37 Ind.App. 469, 77 N.E. 290 In Maitland v. Reed, 37 Ind.App. 469, 77 N.E. 290, 291 (1906), involvi......
  • JS Sweet Co. v. White County Bridge, No. 65A01-9712-CV-416.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1999
    ...McCoy v. Able, 131 Ind. 417, 423, 30 N.E. 528, 530 (1892), reh'g denied; Lake Michigan Water Co. v. U.S. Fidelity & Guaranty Co., 70 Ind.App. 537, 541, 123 N.E. 703, 705 The Commission asserts that the evidence indicated that Magner made his measurements in good faith and that he harbored n......
  • Request a trial to view additional results
7 cases
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1980
    ...McCoy v. Able et al. (1892), 131 Ind. 417, 30 N.E. 528, 31 N.E. 453, quoted in Lake Mich. Water 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 ha......
  • School District No. 1 v. Howard, 1879
    • United States
    • United States State Supreme Court of Wyoming
    • December 10, 1935
    ...Articles 20, 31, 39 and 40 of Contract. The courts favor arbitration proceedings. 2 R. C. L. 389; Lake Michigan Company v. Company, (Ind.) 123 N.E. 703; Chatfield v. O'Neal, 93 A. 133. KIMBALL, Chief Justice. BLUME and RINER, JJ., concur. OPINION [49 Wyo. 45] KIMBALL, Chief Justice. This is......
  • Lerma v. Allstate Insurance Company, Civ. No. 4758.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • April 22, 1968
    ...the architect is a legitimate prerequisite to suit on the contract. Lake Michigan Water Co. v. United States Fidelity and Guaranty Co., 70 Ind.App. 537, 123 N.E. 703 (1919); Maitland v. Reed, 37 Ind.App. 469, 77 N.E. 290 In Maitland v. Reed, 37 Ind.App. 469, 77 N.E. 290, 291 (1906), involvi......
  • JS Sweet Co. v. White County Bridge, No. 65A01-9712-CV-416.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 29, 1999
    ...McCoy v. Able, 131 Ind. 417, 423, 30 N.E. 528, 530 (1892), reh'g denied; Lake Michigan Water Co. v. U.S. Fidelity & Guaranty Co., 70 Ind.App. 537, 541, 123 N.E. 703, 705 The Commission asserts that the evidence indicated that Magner made his measurements in good faith and that he harbored n......
  • Request a trial to view additional results

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