Lugger v. Hicks

• Decision Date: 18 April 1894
• Citation: 11 Ind.App. 374,36 N.E. 1085
• Parties: LUGGER et al. v. HICKS.
• Court: Indiana Appellate Court

11 Ind.App. 374

36 N.E. 1085

LUGGER et al.

v.HICKS.¹

Appellate Court of Indiana.

April 18, 1894.

Appeal from circuit court, Greene county; J. C. Briggs, Judge.

Action by James M. Hicks against Francis M. Dugger and others to enforce assessments for the improvement of a street in the town of Bloomfield. From a judgment for plaintiff, defendants appeal. Affirmed.

A. G. Cairns, E. H. C. Cairns, and W. L. Cairns, for appellants. Moffett & Davis, for appellee.

DAVIS, C. J.

This action was instituted by appellee against appellants to enforce street assessments for the improvement of a street in the town of Bloomfield. The improvement was made under the provisions of the act of 1889 known as the “Barrett Law,” and amendments thereto. In this connection it is proper to observe that an appellate court may search the record for reasons to sustain the judgment of the trial court, but is not required to, and ordinarily will not, reverse such judgment on a question not presented by the complaining party. Only such errors, therefore, as have been discussed, will be considered in deciding this case. The proceedings were instituted in March, 1892. The errors assigned in this court in behalf of the several appellants are: (1) That the court erred in overruling the demurrer to the complaint; (2) that the court erred in sustaining demurrers to certain special answers; (3) that the court erred in its conclusions of law on the special finding of facts.

The first error discussed brings in question the sufficiency of the complaint. The first objection is that the complaint does not show that appellee has not been paid for the work performed by him under his contract in making the improvement by the town. The averment, in connection with the other facts pleaded, that the assessments were due and unpaid, was sufficient on this point, without any allegation that the town had not paid appellee. It was not incumbent on the town to collect the assessments. Entering into the contract with appellee therefor, the town was acting for and in behalf of the property owners affected thereby (Sims v. Hines, 121 Ind. 534, 23 N. E. 515); and when the appellee complied with the terms of the contract, and completed the improvement, he had the right to enforce the assessment against appellants.

The next objection urged is that the complaint is defective for failure to specifically state the nature and extent of the improvement. The statute provides that the “board of trustees shall declare by resolution the necessity therefor, and shall state the kind, size, location, and designate the terminal points” of such improvement. Rev. St. 1894, § 4289. The ordinance-a copy of which is filed with the complaint-is not the foundation of the action, and cannot be considered to supply any defect or omission in the complaint. But it is alleged in the complaint that “the board of trustees of said town, in regular and lawful session, duly passed, adopted, and promulgated, and caused to be recorded and published, an ordinance and resolution providing for the grading and graveling of the public streets and sidewalks, and the construction of a sewer or gutter for the purpose of drainage of, on, and along all that part of Washington street aforesaid, commencing where it crosses Main street, and running north to where said street intersects Franklin street in said town, said resolution and ordinance providing for and designating the nature and extent of said improvement, and the grade to be followed, and the kind of material to be used, and declaring said improvement to be necessary,” etc. The complaint is not, perhaps, in this respect, so full and clear as the rules of good pleading require, but it shows compliance with all of the material statutory requirements, and it is, in our opinion, sufficient to withstand the demurrer. If greater particularity were desired, a motion to make more specific would have been the appropriate remedy. The demurrers admit that the terminal points were designated, that the location was fixed, and that the character and extent of the improvement were prescribed in the ordinance. This is all the statute requires in this respect. It was not necessary to set out the details of the ordinance for the improvement in the complaint. If A. enters into a contract in writing with B. to build a house for him, according to certain plans and specifications, for a stipulated amount, A., on the completion of the work, may maintain an action on the contract, without alleging in detail the size or kind of house built by him. In this case the assessments are the foundation of the action, and while it was essential that the resolution or ordinance for the improvement should contain the substantial provisions prescribed by statute, the complaint in this action is not bad for failure to aver the “width of road or depth of grade.”

The last objection is that “the complaint does not set out a copy of the contract, nor show the terms of the contract, nor what work was to be done under the contract, nor the price to be paid for the work.” It was not necessary to set out in the complaint a copy of the contract, nor allege the specific terms of the contract. The appellee was not required to allege in minute detail what work had been done under the contract, nor to state the price that was to be paid for the entire work. The appellee was not bound to incorporate in his complaint, by reference or otherwise, either the resolution, ordinance, or contract; and when he pleaded the acts done by the municipal officers, together with the facts showing the authority to perform such acts, and alleged that in pursuance thereof, after the publication of notice for ten days of the passage of said resolution in a newspaper of general circulation, as provided in section 4289, supra, and after subsequently thereto advertising for three weeks in a newspaper of general circulation, to receive proposals for said work, as provided in section 4288, Rev. St. 1894, the appellee was the lowest bidder therefor, and “was awarded the contract, and gave a good and sufficient bond for the construction of said improvement,” and that he “thereupon made, constructed, and completed said improvement in all things in accordance with the terms of said contract and the plans and specifications therein agreed upon;” and also specially averred the facts showing a full compliance with the provisions of sections 4293 and 4299, Id., and set out the final estimate and assessment, which, as appears, was levied and issued pursuant to section 4297, Id.,-the complaint was, so far as any objection thereto has been made, sufficient. Van Sickle v. Belknap, 129 Ind. 558, 28 N. E. 305.

The special answers of the several appellants to which demurrers were sustained are substantially the same. The facts so pleaded in bar are that the street in front of their respective properties was a public highway, not exceeding 40 feet in width; that a distance of 15 feet back from the line of the street a fence was erected; that said 15 feet was a private walk, which had become so badly washed that persons could not walk over the same; that said contract for the improvement of the street covered said strip aforesaid, which was not a part of the highway; that, after the contract was entered into, the slope of the grade was changed; that at the time of the commencement of the work, and at divers times during the progress of said work, said appellants notified the town, that the appellants “objected to and remonstrated...