Noble v. Davison

Decision Date27 October 1911
Docket Number21,927
Citation96 N.E. 325,177 Ind. 19
PartiesNoble et al. v. Davison
CourtIndiana Supreme Court

Rehearing Denied January 12, 1912.

From Spencer Circuit Court; Elbert M. Swan, Special Judge.

Suit by David A. Davison against Ernest E. Noble and others. From a judgment for plaintiff, defendants appeal.


John W Brady, Lucius C. Embree, Morton C. Embree, for appellants.

Robinson & Stilwell, Thomas Duncan, for appellee.


Morris, J.

Appellee filed his complaint in the Gibson Circuit Court on August 17, 1910, against appellants Noble, Yeager and Fisher, as trustees of the school city of Princeton, the school city of Princeton, and the Noble Plumbing and Heating Company, to enjoin them from performing a contract for the installation of a heating system in a public school building, on the ground that the contract was invalid.

The venue of the cause was changed to the Spencer Circuit Court. Demurrers were filed to the complaint, by each defendant, which the court overruled. There was a trial by the court, and judgment for plaintiff, enjoining defendants from further performing the stipulations of the contract. A motion by defendants for a new trial was overruled. The errors separately assigned by each defendant, and discussed here, are the overruling of defendants' several demurrers to the complaint, and their motions for a new trial.

The complaint alleges that plaintiff is a resident taxpayer of the city of Princeton; that defendants Noble, Yeager and Fisher constitute the school board of the city of Princeton; that in June, 1908, Yeager was elected a member thereof, for a three year term; that on June 6, 1910, Noble was elected a member thereof, for a three year term; that in July, 1910, Fisher was elected a member of the board to fill a vacancy caused by the death of one Reeves, and immediately qualified after his election; that Noble and Yeager each qualified as members of the board on August 1, 1908, and August 1, 1910, respectively.

The complaint further alleges that Noble is the president of defendant Noble Plumbing and Heating Company, which is a corporation organized and doing business under the laws of Indiana, and engaged in the business of plumbing and installing heating plants; that defendant Ernest E. Noble owns a large number of shares of the capital stock of the corporation, and is interested in all contracts made by the company with other persons and corporations; that on June 25, 1910, the school board, by its then acting trustees, entered into a written contract with defendant Noble Plumbing and Heating Company, by the terms of which the company agreed to install a steam-heating plant in a public school building in the city of Princeton for the price of $ 2,675; that by the terms of the contract the plant was to be installed by September 1, 1910; that the provisions of the contract cannot be more fully set out in the complaint, because the contract is in the possession of defendants; that the company has commenced the work of installing the heating plant under the terms of the contract, and will complete the same and collect the price therefor from the school board, unless restrained by the court; that the contract is in violation of the statutes of Indiana, is contrary to public policy, and void; that the board of trustees is threatening to pay a portion of the contract price for work already done, and will do so unless restrained by the court; that plaintiff has no adequate remedy at law, and the payment of the contract price will irreparably damage plaintiff and all other citizens of Princeton.

Appellants contend that appellee, as a taxpayer of the city, has no standing in court as a plaintiff in an action of this kind; that such a suit will not lie at the instance of a single taxpayer, or of all the taxpayers of a city; that such right of action vests in the school corporation, and until it has refused a proper demand to perform its duties no right of action exists, and then, only in favor of the taxpayers of the corporation as a whole, in a suit by them all, or by one or more than one taxpayer representing them as a whole.

This position is untenable. It has been held repeatedly by this court that one or more than one resident taxpayer of a municipal corporation may sue to enjoin an illegal act, involving the expenditure of funds raised by taxation, even when it appears on the face of the complaint that plaintiff's interest does not differ in kind from that of the public in general, within the corporate limits. It was so decided in Meyer v. Town of Boonville (1904), 162 Ind. 165, 70 N.E. 146. In that case the authorities on the proposition were collected and cited in such abundance that we do not deem it necessary to do more than call attention to those authorities.

A demand was not necessary as a condition precedent to plaintiff's right to bring the action. Moore v. State, ex rel. (1876), 55 Ind. 360; Terrell v. Butterfield (1883), 92 Ind. 1; Agar v. State (1911), 176 Ind. 234, 94 N.E. 819; American Plate Glass Co. v. Nicoson (1905), 34 Ind.App. 643, 73 N.E. 625.

Counsel for appellant maintain that in any event the complaint is insufficient to repel a demurrer for want of facts, because it fails to allege that Ernest E. Noble was president of the plumbing company, or an officer or agent thereof, when the contract was executed on June 25, 1910.

It is not, in specific terms, alleged in the complaint that Noble was president of the company when the contract was executed, the allegation being that Noble "is the president," etc. The complaint was filed August 17, 1910.

Whether the question would be more appropriately presented by a motion to make the complaint more specific than by a demurrer for insufficient facts, or whether the complaint would fairly warrant the inference that Noble was president when the contract was executed, is not necessary to be determined, in view of the state of the record.

It was proved at the trial, without any objection by defendants, that Noble was the president of the corporation when the contract was executed, and, indeed, that he executed the contract for the corporation. The contract itself, admitted in evidence without objection, shows provisions for the examination of the plant by the school board after the time when Noble should have qualified as a member thereof.

Section 700 Burns 1908, § 658 R. S. 1881, provides that "no judgment shall be * * * reversed * * * by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, * * * or other proceedings therein, which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court." We think this provision of our code is applicable here. The defect in failing to allege that Noble was president of the company at the time the contract was executed, as well as at the time of filing the complaint, is such that this court should deem the complaint amended in that particular. Browning v. Smith (1894), 139 Ind. 280, 37 N.E. 540; Evansville, etc., R. Co. v. Maddux (1893), 134 Ind. 571, 33 N.E. 345, 34 N.E. 511; Davis v. Doherty (1879), 69 Ind. 11; Bristol Hydraulic Co. v. Boyer (1879), 67 Ind. 236; Singer Mfg. Co. v. Doxey (1878), 65 Ind. 65; Carver v. Carver (1876), 53 Ind. 241; Krewson v. Cloud (1873), 45 Ind. 273; Hamilton v. Winterrowd (1873), 43 Ind. 393, Lowry v. Dutton (1867), 28 Ind. 473; Case v. Wandel (1861), 16 Ind. 459; Ebersole v. Redding (1864), 22 Ind. 232.

Appellants' counsel vigorously contend that the judgment is not supported by sufficient evidence, because it is shown thereby that the contract was executed before Noble qualified as a member of the school board, and, therefore, it was valid, in the absence of fraud. This contention requires a statement of the facts shown by the evidence, for the complaint is not drawn on the theory of fraud, but, that the contract was void, by statute, and, on grounds of public policy.

On June 6, 1910, Noble was elected, by the city council, a member of the school board to succeed a member of the board whose term expired August 1, 1910, and he actually qualified August 4, 1910, and has since acted as a member of the board. On June 25, 1910, defendant plumbing company was a corporation, with a capital stock of $ 5,000, divided into shares of $ 50 each, all of which shares were owned by appellant Noble and his wife and son. Appellant Noble was the president and a director of the corporation, and drew a salary of $ 75 a month. His son was secretary and treasurer of the company. Mrs. Noble was a director, but held no other official position in the corporation. On June 25, nineteen days after Noble had been elected a school trustee, appellant plumbing company, by its president, signed a written proposal to put in the heating plant in controversy. This proposal, with some minor stipulations added by the school board, was accepted on the same day, in writing, by the board.

The contract provided for installing a heating plant in a school building, and that said work be completed on or before September 1, 1910, and be done in a thoroughly scientific manner. It contained the stipulation that should appellant Ernest E. Noble, "of the said Noble Plumbing &amp Heating Company qualify as school trustee for the school city of Princeton, before said heating and ventilating is installed and accepted, the said * * * company shall employ the services of a first-class heating engineer, said engineer to be approved by the other two members of the school board, to inspect and decide if said heating and ventilating plant has been installed and works according to the plans and specifications above referred to." The old radiators, then in the school building, were to...

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