Slattery v. Sch. City of South Bend

• Decision Date: 08 January 1909
• Docket Number: No. 6,284.,6,284.
• Citation: 43 Ind.App. 58,86 N.E. 860
• Parties: SLATTERY v. SCHOOL CITY OF SOUTH BEND et al.
• Court: Indiana Appellate Court

43 Ind.App. 58

86 N.E. 860

SLATTERY

v.SCHOOL CITY OF SOUTH BEND et al.

No. 6,284.

Appellate Court of Indiana, Division No. 2.

Jan. 8, 1909.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by William J. Slattery against the School City of South Bend and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Guy & Pattee and Talbot & Talbot, for appellant. George R. Fish, Thad. M. Talcott, Jr., and D. D. Bates, for appellees.

COMSTOCK, P. J.

Appellant, as the surviving member of the firm of Edward Slattery & Son, sought to recover damages for the breach of a contract alleged to have been entered into on the 7th day of May, 1904, between said firm and the board of trustees of the school city of South Bend, Ind. Separate and joint demurrers for want of facts were sustained to each of the four paragraphs of the second amended complaint; and, appellant refusing to plead further, judgment was rendered against him, and in favor of appellees, for costs. This action of the court is assigned as error. The rulings as to the separate demurrers of the appellees, John B. Stoll, Fred P. Eastman, and Francis M. Jackson, trustees, are not discussed, and they are therefore waived. Each paragraph presents several questions, one of which is, “Was it necessary to obtain the consent of the common council prior to the execution of the contract sued on?” If this question is answered in the affirmative, it disposes of the case, and the judgment must be affirmed.

The first paragraph of complaint, so far as it is necessary for the consideration of the above-stated question, alleges, in substance, that on the 24th day of March, 1902, the school city of South Bend, by its board of trustees, filed its petition with the common council of the city of South Bend, Ind., praying permission for the erection of a grammar school building and boiler house; that on said date a resolution was duly passed by said common council authorizing the school city to erect said buildings, said petition setting out among other things that “there is immediate and pressing necessity for said building,” and estimating the probable cost at $80,000; that afterward, on the 26th day of May, 1902, they asked for an amendment to the original permit, increasing the estimate of probable cost to $90,000. Both petitions were granted, and a contract for the construction of said buildings ratified by said common council. Afterwards, while said structures were in the process of construction, and before the completion of the same, the board of trustees discovered certain defects in the plans of said buildings, and in the materials used in the building of certain parts thereof; that certain trusses did not have sufficient support; that said trustees deemed it necessary to make certain changes and alterations in said building; that said changes and alterations were necessary in the safe and proper construction of said building; that on the 6th day of May, 1904, one Edward Slattery and this plaintiff were partners doing business under the firm name of Edward Slattery & Son; that the plaintiff is the sole surviving member of said firm; that on the 6th day of May, 1904, the defendants entered into a written agreement with said partnership, whereby the latter undertook and agreed to shore the walls and replace the foundation wall and footings, etc., in said school building, and the defendant promised and agreed to pay said Edward Slattery & Son for the services, labor, and material furnished in completing said contract in the sum of $14,400; that said Edward Slattery & Son executed a good and sufficient bond in the sum of $25,000 to the school city of South Bend, Ind., as required by said contract, and did keep and perform all the conditions on their part and proceeded, under the direction and with the knowledge of said defendant trustees, to do the work and furnish the materials; that the said plaintiff was put to an expense of $800 in preparing for said contract; that on the 11th day of June, 1904, the board of trustees of said school city wholly repudiated said contract with said Edward Slattery & Son, and notified them to abandon all work under their said contract, and passed a resolution designed to rescind and cancel their said contract,...