Oppenheimer v. Jackson Sch. Tp. of Dekalb Cnty.

• Decision Date: 14 June 1899
• Parties: OPPENHEIMER v. JACKSON SCHOOL TP. OF DEKALB COUNTY.
• Court: Indiana Appellate Court

22 Ind.App. 521

54 N.E. 145

OPPENHEIMER

v.JACKSON SCHOOL TP. OF DEKALB COUNTY.

Appellate Court of Indiana.

June 14, 1899.

Appeal from circuit court, Dekalb county; W. L. Penfield, Judge.

Action by Anna Oppenheimer against the Jackson school township of Dekalb county. From a judgment for defendant, plaintiff appeals. Reversed.

Milton Kraus, for appellant. J. E. & J. H. Rose, for appellee.

BLACK, J.

The complaint of the appellant, in two paragraphs, sought a recovery from Jackson school township of Dekalb county for certain school desks and seats furnished to the school township by the United States School-Furniture Company. The first paragraph was founded upon a written certificate, executed by the trustee of the school township to said company, and by it assigned by written indorsement to the appellant. The second paragraph was upon an account, assigned in writing by said company to the appellant. The only question presented here is upon the action of the court in overruling the appellant's demurrer to the answer of the school township, directed to both paragraphs of the complaint. The answer was based upon failure of the trustee to comply with the provisions of sections 6006, 6007, Horner's Rev. St. 1897 (sections 8081, 8082, Burns' Rev. St. 1894), relating to the incurring of debts in excess of the fund on hand to which such debts are chargeable and of the fund to be derived from the tax assessed for the year. In the first paragraph of the complaint the value of the desks and seats was not stated. In that paragraph the appellant sued upon the contract, as the assignee thereof by indorsement in writing, and not for the recovery of the value of property suitable and necessary for the use of the school, accepted, retained, and used by the school township. The contract, as shown by the answer, having been made in violation of the statute, there could be no recovery upon it; and therefore we think the answer showed a sufficient defense to the first paragraph of the complaint. Boyd v. Black School Tp., 123 Ind. 1, 23 N. E. 862;Boyd v. Mill Creek School Tp., 124 Ind. 193, 24 N. E. 661;F. C. Austin Mfg. Co. v. Smithfield Tp. (Ind. App.) 52 N. E. 1011. In the second paragraph of the complaint the school furniture company was made a party defendant, and it was shown that the school house for which the desks and seats were furnished was wholly without seats and desks, or any other suitable furniture, and, until such seats and desks were...