New Tel. Co. v. Foley

• Decision Date: 26 February 1902
• Parties: NEW TEL. CO. v. FOLEY.
• Court: Indiana Appellate Court

28 Ind.App. 418

63 N.E. 56

NEW TEL. CO.

v.FOLEY.

Appellate Court of Indiana, Division No. 2.

Feb. 26, 1902.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Daniel Foley against the New Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed.Lewis C. Walker, for appellant. J. E. Bell and Hawkins & Smith, for appellee.

ROBY, J.

This action is founded upon a contract in terms as follows: “Indianapolis, Ind., July 14th, 1898. We, the undersigned, agree to pay Daniel Foley ($3.25) three dollars and twenty-five cents per square yard for repairing Pearl street from the intersection of Pearl and Alabama streets, at the beginning of the wing of Alabama street to the wing of New Jersey street. The price hereby agreed to be paid, is to be determined from the actual measurement of trench in said Pearl street, as determined by the measurement by the city engineer. New Telephone Co., H. B. Gates, Sec'y.” The court made special findings of fact and stated conclusions of law thereon, and rendered judgment against appellant for $409. The controversy arises in regard to the provision of the contract relating to measurement by the city engineer. This provision was a part of the contract. It is as equally binding upon the parties as any part thereof. Having by the contract fixed the manner by which the amount due should be ascertained, it devolved upon the plaintiff, before he could recover, to show a measurement by the person named in the contract, or a reason for the omission. U. S. v. Robeson, 9 Pet. 319, 9 L. Ed. 142;Supreme Council v. Forsinger, 125 Ind. 52-54, 25 N. E. 129, 9 L. R. A. 501, 21 Am. St. Rep. 196Hamilton v. Insurance Co., 136 U. S. 242, 10 Sup. Ct. 945, 34 Law Ed. 423; Railway Co. v. Scholes, 14 Ind. App. 524, 528, 43 N. E. 156, 56 Am. St. Rep. 307;Bird v. Church, 154 Ind. 138-152, 56 N. E. 129;Packard v. Van Schoick, 58 Ill. 79-82;Holmes v. Ricket, 56 Cal. 307, 38 Am. Rep. 54; Wilson v. Railroad Co., 11 Md. 58; Ball v. Doud, 26 Or. 18-20, 37 Pac. 70;Franklin v. Schultz, 23 Mont. 165, 57 Pac. 1037; Veazie v. City of Bangor, 51 Me. 510; Board v. Newlin, 132 Ind. 27-31, 31 N. E. 465; McCoy v. Able, 131 Ind. 417, 423, 30 N. E. 528, 31 N. E. 453. The complaint, which was in one paragraph, contained an averment as follows: “That said plaintiff did all things required of him by said written agreement.” Section 373, Burns' Rev. St. 1901, is as follows: “In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege, generally, that the party performed all the conditions on his part. If the allegation be denied, the facts showing a performance must be proved on the trial.” An excuse for nonperformance must be pleaded, and cannot be proven under the general averment of performance. Insurance Co. v. Duke, 43 Ind. 418;Bird v. Church, 154 Ind. 152, 56 N. E. 129. The measurement stipulated for was to be made by a third person, an agent, while so doing, of both parties, and in no way...