Ritenour v. Shoemaker

• Decision Date: 01 July 1924
• Docket Number: 24,113
• Parties: Ritenour v. Shoemaker et al
• Court: Indiana Supreme Court

144 N.E. 550

195 Ind. 52

Ritenour v. Shoemaker et al

No. 24,113

Supreme Court of Indiana

July 1, 1924

DRAINS.---Construction.---Complaint.---Annulment of Contract.---Trial without Jury.---Statutes.---A complaint to annul the contract for the construction of a drain for failure to perform as agreed, not alleging amount of work done, amount remaining to be done, amount paid and unpaid and the cost of completion does not state a cause of action for damages for breach of contract, but a cause of action to annul the contract under the drainage law (6144 Burns 1914 Acts 1907 p. 508) which provides (6143 Burns' Supp. 1921 Acts 1917 p. 296) all actions under this act shall be tried by the court without a jury.

From the Wells Circuit Court; Frank W. Gordon, Judge.

Action by Daniel C. Shoemaker and others against Adam Ritenour. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Vaughn & Decker and Earl R. Ferguson, for appellant.

Abram Simmons, Charles G. Dailey and Virgil M. Simmons, for appellee.

OPINION

Ewbank, J.

Appellant was the contractor for the construction of a public drain. He appeals from a decree adjudging "that the drain herein has not been completed according to the plans and specifications, and that the contract of construction be and it is hereby annulled, and that said engineer of construction should resell same * * * that the costs of this cause be taxed against the defendants." Appellant filed a motion for a new trial because he was refused a trial by jury, and overruling this motion is the only error assigned.

The complaint was filed February 3, 1919. It alleged in substance, that plaintiff was the superintendent of construction of the drain in question; that he had duly let to defendant (appellant) a contract for the construction of the open part of the drain at a price named, which contract was in writing and stipulated that the work should be completed on or before October 1, 1917, and at the same time had let to him a contract for the construction of certain tiled arms or laterals of the drain, stipulating that they should be completed by April 1, 1918; that the defendant contractor had given a bond for the performance of said contracts, copies of the contracts and bond being recited at length in the body of the pleading; that said contractor and his surety had failed and refused to construct the work within the agreed time, and that a large portion yet remained uncompleted, and the contractor was not making a good faith...