Lund v. Bd. of Com'rs of Newton Cnty.

• Decision Date: 09 December 1910
• Docket Number: No. 6,871.,6,871.
• Citation: 93 N.E. 179,47 Ind.App. 175
• Parties: LUND v. BOARD OF COM'RS OF NEWTON COUNTY.
• Court: Indiana Appellate Court

47 Ind.App. 175

93 N.E. 179

LUND

v.BOARD OF COM'RS OF NEWTON COUNTY.

No. 6,871.¹

Appellate Court of Indiana, Division No. 1.

Dec. 9, 1910.

Appeal from Circuit Court, White County; Jas. P. Wason, Judge.

Action by Erick Lund against the Board of Commissioners of Newton County. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. Affirmed.

Wm. J. Whinery, for appellant. Wm. Darroch and John Higgins, for appellee.

WATSON, J.

Appellant brought this action to recover the sum of $3,500, with interest due for work and labor done and material furnished by appellant for appellee at its special instance and request, in the erection and construction of a courthouse building, in the town of Kentland, Newton county, Ind. The appellant filed an amended complaint in three paragraphs, and afterwards two additional paragraphs were filed. The first paragraph of the amended complaint was a common count for work and labor done, and for material furnished at the special instance and request of appellee, including a bill of particulars, and alleging that the appellee had received and accepted said work, labor, and materials; also, the presentation of the claim to the board of commissioners, and its disallowance. The second paragraph was likewise a common count for work and labor done, and material furnished at the special instance and request of the appellee, alleging also that the work, labor, and material had been received, accepted, and enjoyed by appellee; that appellant had presented his claim to appellee, the board of commissioners, and the same had been disallowed; that he had requested the said board to request the county council of said Newton county to make an additional appropriation for the payment of appellant's claim-all of which had been refused. The third paragraph set forth the facts, showing the adoption of plans and specifications by the board, the solicitation of bids by advertising, the presentation of appellant's bid with others, the awarding of the contract to appellant, the work done by him under said contract, the suit to enjoin the board from proceeding under said contract, the appeal to the Supreme Court, and the reversal of said judgment, the request made by appellee that appellant stop work, after the reversal of said judgment, the submission of an estimate by the appellee to the county council of Newton county for a new appropriation of money with which to complete said building, the appropriation thereof, the adoption of new plans and specifications for the completion of said building from the point appellant had been compelled to stop work thereon, the letting of a new contract, and the erection and completion of said building by appellee; likewise, the presentation of appellant's claim for allowance and its disallowance by appellee, also the request for an additional appropriation for the payment thereof. The fourth paragraph was a common count for money paid by appellant for the use and benefit of appellee, at its special instance and request, for work and labor and material used in the erection and construction of the courthouse in the town of Kentland; alleging, also, the presentation of the claim to the board, and the disallowance thereof. The fifth paragraph sets forth the facts similarly to the third paragraph, except that it is more specific in its allegations, and is upon the theory of money paid at the special instance and request of appellee in carrying on the work under the contract for the erection and construction of the courthouse, a copy of which contract is made a part thereof. It also alleges the new appropriation by the county council, the adoption of new plans and specifications by appellee, the completion of the building, and the refusal to pay appellant for the work and labor done and materials appropriated by it and furnished at the special instance and request of appellee. A demurrer was filed to each paragraph of the amended complaint and was sustained by the court, which ruling is assigned...