Oppenheimer v. Greencastle School Township

• Decision Date: 10 January 1905
• Docket Number: 20,420
• Citation: 72 N.E. 1100,164 Ind. 99
• Parties: Oppenheimer v. Greencastle School Township et al
• Court: Indiana Supreme Court

72 N.E. 1100

164 Ind. 99

Oppenheimer v. Greencastle School Township et al

No. 20,420

Supreme Court of Indiana

January 10, 1905

From Putnam Circuit Court; Presley O. Colliver, Judge.

Action by Anna Oppenheimer against Greencastle School Township and others. From a judgment for defendants, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Jackson Boyd and William E. Mowbray, for appellant.

Granville C. Moore and Thomas T. Moore, for appellees.

OPINION

Hadley, C. J.

On March 16, 1901, appellant's assignor Manson U. Johnson sold to John A. Keller, trustee of appellee township, for the use of his township in schools numbered one and nine, one single and one double Ideal heater and ventilator. In Johnson's proposal for the sale appears the following provision: "Guaranty: When the party of the second part has complied with the terms and conditions of the contract first party guarantees that this furnace has the capacity to and will, with ordinary good care and proper attention to fires, heat this building to a temperature of seventy degrees Fahrenheit in the coldest winter weather. Also that the material furnished and the labor performed are the best of their respective kinds and fully up to the highest standard of first-class work. Party of the first part to complete the above contract in the best, most substantial and thorough workmanlike manner, for the sum of $ 375, interest at six per cent. from date. Terms: When above guaranty is fulfilled the owner may be paid after zero weather, at option of trustee. Done at Greencastle, this 16th day of March, 1901. Manson U Johnson." The acceptance was in these words: "The undersigned party of the second part accepts the foregoing proposition of Manson U. Johnson, Anderson, Indiana, for the Ideal heater and ventilator above specified, and agrees to pay for the same the sum of $ 375 upon the terms and conditions above expressed. In witness whereof, we have hereunto set our hands at Greencastle, Indiana, this 16th day of March, 1901. [Seal.] John A. Keller, trustee, John L Hillis, R. S. Graham, secretary."

On the same day there was executed to Johnson for the heaters what is termed a township order, as follows: "No. . $ 375. State of Indiana, Putnam county. Greencastle township, in county and State aforesaid, will pay to the order of Manson U. Johnson, $ 375 out of special school fund for one single Ideal heater and one double Ideal heater and ventilator, payable at the First National Bank of Greencastle, Indiana, on or before the 25th day of January, 1902. Value received, waiving valuation and appraisement laws, with interest thereon at the rate of six per cent. per annum, payable semiannually from the 16th day of March, 1901, until paid, and attorney's fees. Date, Greencastle, March 16, 1901. John A. Keller, trustee Greencastle township, Putnam county. John L. Hillis. R. S. Graham." Indorsed: "Pay to the order of Anna Oppenheimer. Manson U. Johnson."

The evidence shows that Hillis and Graham at the time of the transaction were members of the township advisory board. Default in payment of the order having been made, appellant, Manson U. Johnson's assignee by indorsement, instituted this suit. She made Greencastle school township, John A. Keller, trustee, John L. Hillis and R. S. Graham, of the advisory board, parties defendant.

The complaint is in six paragraphs. The first declares upon the order; alleges that it was executed by Greencastle school township to Manson U. Johnson, and signed by John A. Keller, the duly elected, qualified and acting trustee of said township, John L. Hillis and R. S. Graham, members of the advisory board of said township; and that the same was sold and assigned by Johnson to appellant for value, before maturity, and without notice of any defense thereto. The second, third, fourth, fifth and sixth paragraphs set up the same facts in different forms, the substance being the needs of the township for heating apparatus, the suitableness and efficiency of the Ideal heaters, their purchase, acceptance and continued use by Greencastle school township, the execution by said township of the township order therefor, and its assignment to appellant. Some of them counted upon the quantum meruit for the sale of necessaries to the township, and some upon the township order. The separate demurrers of Keller, Hillis and Graham to each paragraph of the complaint were sustained. The separate demurrer of Greencastle school township to the first and fifth paragraphs was also sustained.

With respect to the separate demurrers of Keller, Hillis and Graham, it is alleged in each paragraph of the complaint that Greencastle school township purchased the goods, and executed to Johnson the order in suit. It is not charged in either paragraph that Keller, Hillis or Graham promised to pay the debt, or in any way obligated himself to pay it. It is clearly shown in each that these parties in the transaction were acting as public officers, and solely for the township, and they can not, under the facts alleged, be held personally liable. Pine Civil Tp. v. Huber Mfg. Co. (1882), 83 Ind. 121; State, ex rel., v. Helms, (1893), 136 Ind. 122, 35 N.E. 893; First Nat. Bank v. Osborne (1897), 18 Ind.App. 442, 48 N.E. 256. Their separate demurrers were therefore properly sustained.

The demurrer of Greencastle school township to the first paragraph of the complaint was also...