Sheehan Construction Company v. Hurst
| Decision Date | 28 January 1926 |
| Docket Number | 12,135 |
| Citation | 150 N.E. 319,84 Ind.App. 636 |
| Parties | SHEEHAN CONSTRUCTION COMPANY v. HURST |
| Court | Indiana Appellate Court |
Rehearing denied April 6, 1926.
Transfer denied May 18, 1926.
From Marion Superior Court (10,110); Theophilus J. Moll, Judge.
Action by Earl W. Hurst against the Sheehan Construction Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Walker & Hollett and Owen S. Boling, for appellant.
John W Holtzman and John J. Kelly, for appellee.
Action by appellee to recover from appellant one-third of the profits realized from the construction of a certain road. The cause was submitted upon a request for special findings of facts and conclusions of law, which, in substance, were as follows:
Appellant, prior to July 25, 1918, had been engaged in building sewers and its officers had never been engaged in building roads and streets; that appellee for over ten years prior to that date had been engaged in building roads and streets.
That sometime during April, 1918, appellant desired to bid on road work and engaged appellee to assist in preparing estimates upon which bids were to be based.
That in June or July, 1918, the Marion county commissioners advertised for bids on the J. B. Howard road, commonly called the "Speedway Road," and thereupon and about July 25, 1918, appellant solicited appellee to assist it in making an estimate of the cost of building said road for the purpose of furnishing a basis upon which appellant could submit its bid, and to assist in the building of the road if appellant was successful in procuring the contract; that immediately thereafter, appellee went to appellant's office and met Eugene Sheehan, then and now its president and general manager, and then and there they agreed that if appellant was the successful bidder and procured the contract for the building of said road, appellee was to assist in procuring contracts for materials and in hiring labor, and was to take charge as superintendent of the building of said road, and, as compensation for his services, was to receive one-third of the net profits derived therefrom, and appellant was to finance and furnish the equipment for the building of said road.
That thereafter and before June 25, 1918, appellee and one Schmidt made such an estimate and fixed it at the sum of $ 146,357, which estimate was used by appellant in preparing a bid to be filed with said commissioners, and that on July 25, 1918, appellant filed its said bid in the sum of $ 173,537, which bid was duly accepted and appellant was on said date awarded the contract; that appellee was not a party to such contract.
That thereafter, appellant entered into the work, and that, pursuant to the agreement between appellee and appellant, appellee immediately procured contract for material and employed labor and commenced the construction of said road; appellee procured certain of his own equipment owned in partnership with another and placed the same on the work and started excavating and grading under said contract; that he assisted appellant in purchasing necessary road construction equipment.
That, under and pursuant to their agreement, appellee was paid by appellant $ 500 between September, 1918, and January 4, 1919; that early in January, 1919, the parties agreed that appellee should receive as an advancement under their agreement thirty-five dollars per week, and thereafter appellee received such payment of thirty-five dollars per week straight time during the time that he worked on said job for appellant, which work ceased May 15, 1920, and that, during said period, appellee was so paid $ 1,275; that, at the time of said agreement aforesaid, appellee and appellant agreed that the moneys paid thereunder to appellee would be applied pro tanto to satisfy appellee's share of whatever, if any, profits were netted under such contract.
That appellant completed the road on or about May 15, 1920, and said road was thereafter approved and accepted by the county commissioners; that the time actually consumed in the building of said road was sixty weeks; that appellant received $ 172,534.50 for the building of said road, that appellant was paid eighty per cent. of the contract price on estimates as the work proceeded and the final payment on May 25, 1920.
That appellant expended in the execution of said contract $ 154,494.79.
That there was a net...
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