Rexford v. Board of Commissioners of Rush County

• Decision Date: 19 May 1926
• Docket Number: 12,383
• Citation: 151 N.E. 830,85 Ind.App. 281
• Parties: REXFORD ET AL., RECEIVERS, v. BOARD OF COMMISSIONERS OF RUSH COUNTY
• Court: Indiana Appellate Court

151 N.E. 830

85 Ind.App. 281

REXFORD ET AL., RECEIVERS, v. BOARD OF COMMISSIONERS OF RUSH COUNTY

No. 12,383

Court of Appeals of Indiana

May 19, 1926

Rehearing denied June 30, 1926. Transfer denied November 16 1926.

From Rush Circuit Court; Will M. Sparks, Judge.

Action by the American Paper Products Company against the Board of Commissioners of Rush county. From a judgment for defendant Ley P. Rexford and others, receivers of plaintiff company appeal.

Affirmed.

William J. Henley, for appellants.

John H. Kiplinger, for appellee.

OPINION

NICHOLS, C. J.

This is an action against appellee to recover $ 1,850.15, the cost of the construction of a new bridge. Briefly stated, it is averred in the first paragraph of complaint, so far as here involved, that said company was the owner of certain real estate formerly owned by the United States Board and Paper Company over which real estate ran an old mill race constructed in about the year 1856, and abandoned as such in 1887. Such mill race crossed a public highway of Rush county, and in 1864 a turn-pike company constructed a toll road on said highway with a bridge over the mill race in the same location as the bridge here in controversy. In 1887 Rush county purchased the toll road and it became a part of the free gravel road system of the county, and said county thereafter maintained and repaired the bridge. The highway is a much traveled road, and it is necessary to keep it in a high state of repair for use as a part of the United States Rural Mail route, it being necessary for rural carriers to pass over the bridge. In 1923 the bridge became out of repair, and it became necessary to rebuild and reconstruct such bridge, and on August 6, 1923, the board of commissioners entered the following order: "It having been brought to the attention of the Board that the bridge across the race southwest of Carthage where the old mill race crosses the county highway near the southeast corner of the southwest quarter of Section 24, township 15 north range 8 east, is in bad condition and dangerous to travelers over said highway, the Board now orders the County Surveyor to prepare plans and specifications of a new bridge in conference with the American Paper Products Company, and said American Paper Products Company is hereby ordered to proceed to the erection of a new bridge across said race at said point in compliance with the agreement heretofore entered into between said Board and the predecessor of said company in accordance with the plans and specifications mutually agreed upon."

Upon receiving said order, appellant proceeded immediately to the construction of such bridge as in said order directed and completed the same at an actual cost for material and labor of $ 1,850.15. But there was never any contract or arrangement of any description between appellant and appellee, or any prior owners of mill race, that such owners should participate in the repair or construction of such bridge, or any agreement of any kind concerning the same as mentioned in said order. The company wrote appellee requesting a copy of any contract or agreement between the company or its predecessors which had to do with the upkeep or repair of the bridge. Receiving no answer, it wrote a second letter with a like request, which was answered by the auditor to the effect that no such agreement could be found. The company had no knowledge that there was no contract or agreement between it or its predecessors and appellee until the receipt of the letter from the auditor, at which time it had completed the bridge. The material and labor were furnished at the special instance and request of, and by such written order and direction of appellee, and appellee had received the full value of the service, and was at the time using the bridge but refused to pay for the same though requested so to do. It is further averred that appellee knew that the company was so constructing the bridge under the order above set out, and made no objection to the work as done. A demurrer was sustained to this paragraph of complaint, and successively to four other paragraphs thereafter filed averring substantially the same facts except that the fifth paragraph embraced the element of fraudulent representation by the board of commissioners. The company refused to plead...