Rebekah Assembly I.O.O.F. of Indiana v. Pulse

• Decision Date: 22 November 1910
• Docket Number: No. 7,037.,7,037.
• Citation: 92 N.E. 1045,47 Ind.App. 466
• Parties: REBEKAH ASSEMBLY I. O. O. F. OF INDIANA v. PULSE et al.
• Court: Indiana Appellate Court

47 Ind.App. 466

92 N.E. 1045

REBEKAH ASSEMBLY I. O. O. F. OF INDIANA

v.PULSE et al.

No. 7,037.¹

Appellate Court of Indiana, Division No. 2.

Nov. 22, 1910.

Appeal from Circuit Court, Bartholomew County; Marshal Hacker, Judge.

Action by William C. Pulse and others against the Rebekah Assembly I. O. O. F. of Indiana. Judgment for plaintiffs, and defendant appeals. Reversed, with instructions.

Benj. F. Bennett, Thomas E. Davidson, Hord & Cox, and J. Frank Mann, for appellant. Davison Wilson and Chas. S. Baker, for appellees.

RABB, J.

Appellant and appellees entered into a written contract, by the terms of which appellees agreed to construct for appellant upon its grounds a certain building and covered passageway that would connect said building with one already standing on said ground, for which appellant agreed to pay appellees a certain named sum. The building and passageway were constructed by appellees as required by the terms of the contract, and the compensation named in the special contract therefor paid to the appellees by appellant. Afterwards this suit was brought by the appellees to recover the value of labor performed and material furnished by appellees in the construction of the passageway between the two buildings, based upon the theory that the compensation for such labor and material sued for was not covered by the price fixed in the contract. The complaint was in two paragraphs, appellant's demurrer to each of which was overruled, the case put at issue, and a jury trial had, resulting in a verdict and judgment in favor of appellees.

One of the questions presented by this appeal, and the decision of which is vital to appellees' case, arises upon the action of the court in overruling appellant's demurrer to the complaint. Both paragraphs of complaint proceed upon the theory that the work and labor performed and material furnished, for which compensation is sought to be recovered, were done and furnished under the written contract between the parties, and the contract is made part of each paragraph of the complaint. The material stipulations of the contract are as follows: “The said Pulse & Porter *** in consideration of the agreements hereinafter expressed, hereby contract and agree to do all the work in the best and most faithful manner, and to furnish all the materials for a building to be erected at the I. O. O. F. Home, on said I. O. O. F. Home farm, near Greensburg, Indiana, on the ground and at the place designated by said I. O. O. F. Home committee, to be built on the lot as heretofore described, agreeable to the specifications and accompanying plans, prepared by R. P. Daggett & Company, architects. *** In case of a disagreement between Pulse & Porter and Charles I. Ainsworth, hereafter named, as to plans and specifications, or kind and quality of material, it shall be referred to said architects, and the decision of said architects shall be final. *** No extras will be allowed the party of the second part, nor any alterations made, unless the same shall be ordered by Charles I. Ainsworth, superintendent in charge of the construction, and any extras or alterations must be in writing indorsed or attached to this contract, and the cost of extras or alterations must be agreed upon beforehand and expressed in writing on or attached to this contract. *** The parties of the first part may at any time during the progress of said building make any alterations in the plans, materials or execution of the work, and the same shall in no way affect or make void this contract, but will be added to or deducted from the amount of the contract, as the case may be, and the price agreed upon for said changes must be endorsed in writing on this contract. *** For the faithful performance of this contract *** by the said party of the second part, the said first party hereby agrees to pay the sum of $43,985.” The plans and specifications which formed a part of this contract were not made a part of the complaint, but each paragraph of the complaint averred that said specifications accompanying the contract provided for the construction of a two-story and basement building, and a covered passageway on the grounds of the I. O. O. F. Home, etc., and that the said passageway was understood by the parties to be a passageway connecting the old building with the new one.

It further appeared from the averments of each paragraph of the complaint that the contract provided that appellant's building committee were to select the location whereon the proposed building, the construction of which was the subject-matter of the contract, should be located, and it further appears from each paragraph of the complaint that at the time appellees made their bid for the work they had before them the plans and specifications referred to in the contract, that the drawings thus before them showed the buildings between which the passageway was to be constructed to be 97 feet apart, and it is averred that the building committee located the site of the new building 203 feet from the old one; and it is for the expense incurred in the construction of this additional extent of passageway that the appellees claim a right to recover. It is thus affirmatively made to appear by the complaint that the contract between the parties expressly required the appellee to construct a covered passageway between the two buildings and expressly conferred upon the appellant's committee the right to designate the location of the building to be erected.

The marrow of the appellees' claim is that the plans of the work at the...