Pattie v. State ex rel. Bennett
| Decision Date | 30 March 1921 |
| Docket Number | 11,042 |
| Citation | 130 N.E. 421,75 Ind.App. 233 |
| Parties | PATTIE v. STATE OF INDIANA, EX REL. BENNETT, SUPERINTENDENT |
| Court | Indiana Appellate Court |
From Posey Circuit Court; Herdis F. Clements, Judge.
Action by the State of Indiana, on the relation of Hilbert Bennett superintendent of construction, etc., against James O Pattie. From a judgment for relator, the defendant appeals.
Reversed.
Elbert M. Swan, William C. Mason and Arch Stevenson, for appellant.
William A. McCullough, William M. Smith and Benjamin F. Smith, for appellee.
Appellee commenced this action to recover on a bond alleged to have been executed by appellant to secure the performance of a contract for the construction of a portion of a certain drain. The complaint is in a single paragraph and alleges the establishment of such drain, the relator's appointment as superintendent of construction, the awarding of a portion of the work to appellant, his execution of a contract therefor, and the bond in suit to secure the performance thereof, a breach of the same, by failing to complete the portion of the drain covered by his contract according to the terms thereof, and, within the time specified therein, the annulment of his contract, and the completion of the work specified therein by another to whom such work was relet. It is alleged that by reason of such facts said relator, as such superintendent of construction, sustained damages in the sum of $ 1,250 for which he demands judgment. The contract and the bond are parts of the complaint as exhibits. To this complaint appellant filed an answer in abatement in two paragraphs. The first alleges that, at the time of the execution of the drainage contract mentioned in the complaint, contracts were entered into by appellee with other parties for the construction of certain portions of the drain lying immediately below that part thereof covered by his contract, and all of which were to be completed prior to the time specified for the completion of the work awarded to him; that upon the execution of the contract and the bond in question he proceeded at once with the work, and within the time specified excavated 1,500 cubic yards of earth and was proceeding with its completion when heavy rains set in, which filled said drain with water; that the portions of the drain lying immediately below that portion thereof covered by his contract had not been completed so that the water which accumulated above could flow out, and as a result a standing pool was formed in that portion of said drain excavated by him in pursuance of his said contract; that he notified the relator of said facts and of his inability to complete his contract until an outlet for the water was had by the completion of the portions of the drain lying immediately below; that said relator "thereupon extended the time indefinitely to this defendant, or until said contracts were sufficiently advanced to permit the water to flow therefrom, for the completion of said part of said drain, as set out in the contract and complaint herein," but the relator failed to have the parts of the drain constructed so as to permit the water to flow from his part of the drain; that he has never been notified to appear and show why his contract should not be annulled for a failure to comply with its terms and conditions; that it has never been revoked by any court of competent jurisdiction, but remains in full force; and that he has stood ready and willing at all times to proceed with said work, and to complete the same. The second paragraph of appellee's answer in abatement is substantially the same as the first, except that it makes no reference to any extension of time for the completion of said work. It alleges that the filling with water of that portion of the drain which he had excavated was an act of God, and that the pretended annulment of his said contract and the reletting of the work covered thereby were without authority of right, and therefore illegal and wrongful, because the same was done without any notice to him, without his knowledge or consent, and without any order of court. Appellee filed a separate demurrer to each paragraph of said answer in abatement, which the court sustained. Appellant then filed an answer consisting of a general denial and six affirmative paragraphs. Issues were duly joined on said last named paragraphs by a reply in general denial. Appellant demanded a jury for the trial of the cause, which was refused, and, after a trial by the court, a finding was made in favor of appellee on which judgment was duly rendered. A motion for a new trial was filed and overruled, and appellant is now prosecuting this appeal on an assignment of errors which requires a consideration of the questions hereinafter determined.
Appellant contends that the court erred in sustaining appellee's demurrers to each paragraph of his answer in abatement. We cannot concur in this contention. The complaint alleges that the work covered by appellant's contract was relet to another, and that the same has been completed. This fact is not denied in either paragraph of the answer in abatement. It follows that appellant cannot now perform any portion of the work in question, and whether or not he is liable on his bond for a failure to complete it must be determined from the facts as they now exist and not from anything that may hereafter transpire. This is true, although the act of God in sending the rain may have combined with the failure of the relator to have other portions of the drain excavated, and thereby interfered with the completion of his contract, and by reason of such fact appellant may have been given an extension of time as alleged. The facts stated in each of said paragraphs fall far short of showing any ground for an abatement of the action, and therefore the court did not err in its rulings on said demurrers. Appellant contends however, that appellee's demurrers are not in proper form to raise any question as to the sufficiency of either paragraph of his answer in abatement. The courts have frequently given an approved form for a demur...
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