State ex rel. Adam v. Martin, 24822.

• Citation: 154 N.E. 284, 198 Ind. 516
• Case Date: December 08, 1926
• Court: Supreme Court of Indiana

198 Ind. 516

154 N.E. 284

STATE ex rel. ADAM et al.

v.MARTIN, County Auditor, et al.

No. 24822.

Supreme Court of Indiana.

Dec. 8, 1926.

Appeal from Jay Circuit Court; E. E. McGriff, Judge.

Mandamus by the State, on the relation of John Adam and another, to compel Henry Martin, Auditor, to deliver certain warrants, in which the Board of County Commissioners intervened and defendant and intervener filed cross-complaints. Judgment for cross-complainants, and plaintiffs appeal. Reversed, with directions.

Ira M. Sharp, of Lebanon, for appellants.

James R. Fleming, George T. Whitaker, and Byron G. Jenkins, all of Portland, for appellees.

EWBANK, J.

This was an action of mandamus against the auditor of Jay county, Ind., commenced by appellant, on the relation of John Adam and William Adam, to compel the auditor to deliver to relators warrants for $7,600 which the board of commissioners of that county had ordered to be drawn and delivered to them in final payment of the cost of constructing a brick road, built in Wayne township of that county under the provisions of the three-mile road law. The defendant filed a cross-complaint as auditor of the county and another cross-complaint as a taxpayer of Wayne township, and the board of commissioners also filed a cross-complaint, all the cross-complaints being exactly alike except for averments in each purporting to set forth the right of the cross-complainant to sue. And each cross-complaint asked that the order of the board of commissioners accepting the road as completed be set aside and vacated, and that the board of commissioners be made to require that relators should complete the road in accordance with the report of the viewers, the plans, specifications, plats, profile, and contract. A demurrer to each cross-complaint was overruled, and plaintiff excepted. An answer of general denial and an affirmative plea of former adjudication were filed to each of the cross-complaints, and a reply of general denial was made to the affirmative answers. The defendants answered the complaint by a general denial. On proper request the court made a special finding of facts upon which it stated conclusions of law in favor of the cross-complainants, to each of which conclusions the plaintiff excepted. Plaintiff also filed a motion for a new trial for the alleged reasons that the finding is not sustained by sufficient evidence and is contrary to law and that certain evidence was improperly admitted. Error is assigned upon the conclusions of law, and upon the overruling of the demurrers to the several cross-complaints and the overruling of the motion for a new trial.

The complaint alleged in substance: That by proper and regular proceedings the board of commissioners undertook the construction of the brick road in question and sold bonds, from the proceeds of which they appropriated to pay for its construction the sum of $38,000, at which price they let a contract to relators to build it. That the relators did build and construct the road under the supervision and direction of an engineer and superintendent appointed for that purpose by the board of commissioners, and that on the 21st of July, 1917, there was a balance unpaid of the contract price amounting to $7,600, and on that date the superintendent and engineer filed their sworn certificate and statement that the road had been completed by relators in accordance with the plans and profile and specifications, and that they recommended its acceptance, and that the relators, said contractors, be paid the balance of the contract price. That a few days later a taxpayer of Wayne township filed a remonstrance against the acceptance of the road, and thereupon the relators filed their claim with the county auditor for said balance of the contract price, and upon submission of such claim and remonstrance to the board of commissioners at the regular August term, 1917, the board of commissioners made and entered of record a finding and judgment that the cause was submitted, “and, the board having heard the evidence and being fully advised in the premises, finds and adjudges that the construction of the public highway in said cause is fully completed by the contractors according to the plans, specifications, maps, and profile and according to the contract therefor, and that the material used was of the quantity and quality specified in the specifications for the construction of said road; that said highway be accepted as completed, and it is hereby made a part of the free gravel road system of said county, and to be kept in repair out of the free gravel road fund of said county. And the county auditor is ordered to draw a county warrant in favor of the contractors for the balance of the contract price in the sum of $7,600.” And judgment was rendered against the remonstrator for costs. That said judgment and order remains in full force and effect, and that at the time it was made and entered and at all times since there was and has been sufficient money derived from the sale of said bonds and appropriated to the payment of said contract price in the hands of the treasurer of the county with which to pay said sum of $7,600. And that demand was made, etc.

The cross-complaints were filed in November, 1921, more than four years after the judgment accepting the work was rendered. Neither cross-complaint denied or in any way challenged the truth of the foregoing facts, as alleged in the complaint. But each averred, in substance: That the contract between the board of commissioners and relators for the construction of the brick road in Wayne township was duly entered into, and that relators entered upon the construction of the road and did lay and complete a pavement of brick, the alleged defects in which “would only become apparent through the continued use of said highway.” That the engineer and superintendent certified that the road was completed, as was alleged in the complaint, “and that on the - day of August, 1917, the said board of commissioners of Jay county, Ind., being in regular session, accepted said free brick road as completed, and ordered payment to said plaintiffs of the balance remaining unpaid on said contract price, in the amount of $7,600.” Neither cross-complaint alleged what were the provisions of the contract, report of the viewers, plans and specifications and profile, and while it was averred that all of these were filed with the cross-complaints as exhibits, none of them is shown by the transcript to have been so filed, and none of them is copied into the record for any purpose, if, indeed, it could be possible to make such instruments part of a pleading merely by filing them as exhibits, when the alleged cause of action was not founded thereon. Excelsior Draining Co. v. Brown, 38 Ind. 384, 388, 389;Wilson v. Vance, 55 Ind. 584, 588;Fisher v. Hamilton, 49 Ind. 341, 343;Conwell v. Conwell, 100 Ind. 437, 438;Gum-Elastic R. Co. v. Mexico Pub Co., 140 Ind. 158, 160, 39 N. E. 443, 30 L. R. A. 700;Marshall v. Matson, 171 Ind. 238, 242, 243, 86 N. E. 339;Aldrich v. Amiss, 178 Ind. 303, 305, 99 N. E. 419; section 386, Burns' 1926; section 362, R. S. 1881.

But each cross-complaint alleged that the contract, report, plans, and specifications required that certain things should be done in preparing the subgrade for the pavement, and that without having done them the plaintiffs covered the surface of the highway with brick and stone, “thus preventing said board of commissioners from ascertaining the true condition of said subgrade,” and that the contract required a foundation of crushed stone of certain dimensions to be of a depth as stated, as a base for the pavement, and that the plaintiffs had built such base of an insufficient thickness. Also that the contract called for hard burned paving bricks “of standard test and first class in every respect,” but that the plaintiffs had used second-class bricks which were soft, brittle and inferior in quality. That these defects were of such a character that they would not and did not become apparent from the use of the road until it had been used for a long time (the cross-complaints being filed, as we have stated, more than four years after the board of commissioners had accepted the work and adjudged the road completed in accordance with the contract). That the engineer was absent much of the time while the road was being constructed and did not keep informed as to the quantity and quality of the materials entering...