Lincoln Sch. Tp. v. American Sch. Furniture Co.

• Citation: 68 N.E. 301,31 Ind.App. 405
• Parties: LINCOLN SCHOOL TP. v. AMERICAN SCHOOL FURNITURE CO.
• Decision Date: 08 October 1903
• Court: Court of Appeals of Indiana

31 Ind.App. 405

68 N.E. 301

LINCOLN SCHOOL TP.

v.AMERICAN SCHOOL FURNITURE CO.

Appellate Court of Indiana, Division No. 2.

Oct. 8, 1903.

Appeal from Circuit Court, Hendricks County; T. J. Cofer, Judge.

Action by the American School Furniture Company against the Lincoln School Township. From a judgment for plaintiff, defendant appeals. Reversed.

Brill & Harvey and McBride & Denny, for appellant. Hogate & Clark, for appellee.

WILEY, J.

This was an action by appellee against appellant to recover for certain furniture and apparatus furnished appellant. Complaint in four paragraphs. Demurrer to each paragraph for want of facts overruled. Plea in abatement in two paragraphs. Demurrer to each paragraph sustained. Answer in general denial and two affirmative paragraphs. Demurrer to each affirmative paragraph sustained. Trial by court. Judgment for appellee. Motion for a new trial overruled. Exceptions reserved to and error assigned on each adverse ruling.

The substantial averments of the first and second paragraphs of complaint, with the exception of the exhibits and the descriptions of the property, are identical, and are in substance as follows: That on September 10, 1900, the said school township, through its duly authorized, elected, and acting trustee, John F. Lingeman, contracted in writing with the plaintiff to purchase of plaintiff, for cash to said plaintiff, the following articles of furniture and apparatus for said school township, to wit (here follows description of property), all for the agreed price of - dollars. That said furniture, as contracted for, and as above set out, was furnished and delivered to said school township in accordance with the terms and conditions of said contract, and the same is now in use in the High School building of said Lincoln township, Hendricks county, Indiana. A copy of said contract is filed herewith, and made a part of this paragraph, and marked “Exhibit -” (Exhibit A, a contract for desks and chairs, made a part of the first paragraph, and Exhibit B, a contract for a bell and 28 maps, made a part of the second paragraph). Plaintiff also says that before said contract was made and said goods contracted for the said trustee of said township advertised, as by law provided, for bids for said articles of apparatus, and the bid of the plaintiff was the lowest and best bid received, and the advisory board of said township accepted said bids, and made an entry on their records authorizing and directing the said trustee to purchase of the plaintiff the apparatus and furniture above set out. That the pay for said school apparatus and furniture as contracted for and delivered as aforesaid has long since become due, and payment has often been demanded, but the defendant has refused and still refuses to pay the same. Wherefore, etc. The third and fourth paragraphs of the complaint are not dissimilar in substance, and allege, in effect: That on September 10, 1900, the school township, through its duly and legally authorized, elected, and acting trustee, John F. Lingeman, entered into a contract in writing with the plaintiff, which contract is in the words and figures following, to wit (here follows a copy of the contract), by which contract the defendant agreed to purchase of the plaintiff the articles and property therein named, to wit (here follows an enumeration of the desks and chairs in the third paragraph; and the bell and maps in the fourth paragraph), all for the agreed price of - dollars. That said items so set out were for the use of the defendant, and were useful, suitable, and necessary for the benefit of the schools of defendant, and were of the reasonable value of - dollars, the amount agreed to be paid for the same. That plaintiff, in pursuance of his contract as above set out, delivered said school furniture to the defendant, and defendant received the same, and has occupied, used, and appropriated the same for the benefit of its said schools, and is now using said furniture. That the pay for the school furniture as contracted for and delivered as aforesaid was demanded of the defendant immediately after the same was delivered, but the defendant refused and still refuses to pay for the same. Wherefore, etc. In these two paragraphs recovery is sought upon the quantum meruit. From the view we have taken of the law applicable to the facts disclosed by the complaint, it is unnecessary to set out or consider the answer.

The question of controlling influence, as presented by the record, arises upon the action of the trial court in overruling the demurrer to each paragraph of the complaint. If either paragraph of the complaint, tested by the demurrer, does not state a cause of action, it is unnecessary to consider subsequent rulings as affecting other pleadings. It is essential to the determination of the sufficiency of the complaint to consider some of the statutory provisions relating to the power and prescribing the duties of township trustees as defined by the act of 1899, commonly known and designated as the “Township Reform Law,” and the subsequent act of 1901. The act of 1899 (Acts 1899, p. 150 et seq., c. 105) provides for the appointment and subsequent election of a township advisory board, and prescribes their duties. The board is to act in an advisory capacity with the township trustee in fixing the rate of taxation, in determining township expenditures upon estimates furnished by the trustee, and clothes the board with certain authority in specific matters. At the annual meeting of the advisory board, among other things, section 4 requires that the trustee shall present to the board “a detailed and itemized statement in writing *** of all the property or supplies on hand, whether in use or in store, for road, school, and other purposes; *** and the items of school supplies necessary for each school.” Section 6 of the act provides that “in no event shall a debt of the township, not embraced in the annual estimates fixed and allowed, be created without such special authority, and any payment of such unauthorized debt from the public funds shall be recoverable upon the bond of the trustee,” etc. The term “special authority,” as above used, refers to authority given by the board at a special meeting of the board upon call of the trustee to determine whether an emergency exists for the expenditure of any sums not included in the existing estimates and levy as fixed at the annual meeting. Section 9 of the act provides that “if he [the trustee] desires to purchase any school furniture, fixtures, maps, charts, or other school supplies excepting fuel,” etc., “in such amounts as may be authorized by the advisory board, in any year, he shall make an estimate of the kinds and amounts, itemized particularly to be used by bidders therefor.” The same section also provides that: “When a bid is accepted, a proper contract shall then be reduced to writing, *** and be signed by the successful bidder and the trustee, who shall require the bidder to give bond with security,” etc. Section 11 of the act provides that “all contracts made in violation of this act shall be null and void.” All the provisions of this act were in force when the contracts in suit were made, unless, as contended by appellee, certain of them were repealed by the act of March 4, 1899 (Acts 1899, p. 424, c. 192). It is urged with much force and vigor that the latter act repealed the act of February 27, supra, in so far as the former law related to and controlled township trustees in the management of the affairs of the school township. The rulings of the trial court upon the demurrers to the various pleadings seem to indicate that it proceeded upon the theory that the latter act repealed the former in so far as it related to the powers and duties of the school township. Counsel for appellant concede, in argument, that if, in relation to the affairs of the school township, the trustee is not governed by the provisions of the “reform law” (Act February 27, 1899), then the rulings of the trial court were right, and the judgment should be affirmed. The act of March 4, 1899, contains three sections, aside from the repealing and emergency clauses. Section 1 provides that township trustees shall take charge of the educational affairs of their respective townships. It empowers them to employ teachers, to locate conveniently a sufficient number of schools, to build or provide houses, furniture, apparatus, etc.; also provides that a trustee may establish and maintain in his township at least one graded high school; that the school trustees of two or more school corporations may establish and maintain joint graded high schools; that a trustee, instead of establishing a graded high school, may pay the tuition of his pupils competent to enter such school to another school corporation, such payment to be made out of the special school revenue; and that no such graded high school shall be...