Porter v. City of Tipton
| Decision Date | 27 May 1895 |
| Docket Number | 17,383 |
| Citation | 40 N.E. 802,141 Ind. 347 |
| Parties | Porter et al. v. The City of Tipton |
| Court | Indiana Supreme Court |
From the Tipton Circuit Court.
The judgment is affirmed.
G. H Gifford and C. H. Gifford, for appellants.
Beauchamp & Mount, for appellee.
The appellants sued the appellee in three paragraphs of complaint. The first paragraph sought the recovery of $ 28,667.94, the alleged cost of improving north Main street in said city, at the points of intersection with other streets and with alleys.
The second paragraph alleged that a like sum was owing and due appellants for the construction of such improvements, not limiting the claim to the cost of improving intersections that the city was about to issue bonds from the sale of which to realize a sum for the payment of said claim; that said bonds had been contracted and sold at ten per centum less than the par value thereof and not for their full value; that such sale would not produce a sum sufficient to pay said claim by the sum of $ 1,200; that the common "council refused to raise said estimate to cover the discount on said bonds," concluding with the following prayer "Wherefore plaintiffs pray that said common council be ordered to increase said estimate so as to raise funds sufficient to pay plaintiffs' claim and all proper relief."
The third paragraph sought the recovery of $ 8,000 for the improvements along the line of the lots.
The court sustained a demurrer to the second and third paragraphs, and, upon answer of payment to the first paragraph, there was a trial and finding for the appellee.
The questions arising upon the assignment of error and argument of counsel relate to the sufficiency of the second and third paragraphs of complaint, and to the answer to the first paragraph of complaint.
The improvement in question was made under what is known as the Barrett law, R. S. 1894, sections 4288 to 4300.
The contract between the appellants and the appellee provided for the payment of the amount of the bid, "said amount to be collected as provided by law in such cases * * and in full compliance with the ordinance providing for the improvement."
The ordinance was made a part of the contract by express reference, and, by its terms, "the cost of said improvement of said street, except the portion occupied by street and alley crossings, shall be assessed per lineal foot against the real estate abutting thereon; said assessment, if deferred, shall be paid in ten annual installments, to each of which shall be added interest at six per cent. per annum, payable semi-annually from the date of final settlement hereon and collected as provided by law, bond or bonds shall be issued in anticipation of the collection of said deferred assessments, unless the property owners pay their assessments before the said bond or bonds are issued, all as provided for in the act of the General Assembly of Indiana, approved March 8, 1889."
All of the preliminary conditions to the issuing of bonds were alleged in each of the paragraphs of complaint in review.
The theory upon which the appellants' learned counsel seek to uphold the claim of a primary liability, as in personam, of the city, is that section 4290, supra, provides that "the city shall be liable to the contractors for the contract price of said improvement," and that the contract obligated the city to pay the amount of the bid.
This theory is faulty in overlooking the provisions of the contract, and of the law which becomes, by reference and by operation of law, parts of the...
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