State v. Wright

• Decision Date: 15 April 1931
• Docket Number: No. 14128.,14128.
• Parties: STATE v. WRIGHT et al.
• Court: Indiana Appellate Court

97 Ind.App. 660

175 N.E. 666

STATE

v.WRIGHT et al.

No. 14128.

Appellate Court of Indiana, in Banc.

April 15, 1931.

Appeal from Superior Court, Marion County.

Action by James A. Wright and others against the State. From a judgment for plaintiffs, defendant appeals.

Affirmed conditionally.

See, also, 89 Ind. App. 244, 161 N. E. 839;162 N. E. 695.

James M. Ogden and Connor D. Ross, both of Indianapolis, for the State.

Merle N. A. Walker, of Indianapolis, for appellees.

WOOD, J.

This is a second appeal to this court, from a judgment rendered by the Marion superior court, sitting as a court of claims, in an action brought by the appellees against the appellant for a balance alleged to be due them on a contract, entered into between appellees, and the state highway commission of the state of Indiana, for the construction of the grade, for a state highway between the towns of Lyford and Veedersburg. See State v. Wright (1928) 89 Ind. App. 244, 161 N. E. 839, 841, 162 N. E. 695.

In this appeal, appellant has assigned as error (1) the overruling of its motion to make appellees amended complaint more specific; (2) the overruling of appellant's demurrer to the amended complaint; (3) error in stating conclusions of law on the special finding of facts; and (4) error in overruling appellant's motion for a new trial.

Upon the former appeal of this case, referred to supra; this court set out the facts and the issues with great care and precision. Inasmuch as the facts, pleadings, and issues were not changed upon the trial of the case, from which this appeal is taken, but are identically the same as upon the former trial, it is not deemed necessary to again set them out in this opinion.

[1] Even though appellant makes a vigorous assault upon the sufficiency of the amended complaint, upon which this cause was tried, in support of its first two assignments of error, it must fail. When this cause was before this court on the former appeal, the first two errors above indicated were assigned for reversal, and it was then held, that the trial court did not commit error in overruling appellant's motion to make the amended complaint more specific, nor in overruling appellant's demurrer to the amended complaint. The court in passing upon the sufficiency of the amended complaint used this language: “The amended complaint, although it contains many unnecessary and improper averments, is based upon the contract by which appellees agreed to excavate for, and grade, the roadway for a specified sum; it being understood that the amount of material to be excavated and the amount of concrete to be laid, etc., were to be as estimated in the plans. The contract, among other things, provided that, if more excavation should be required than estimated, or if the concrete used in the construction should exceed the estimates, the pay of the contractors should be increased; the increase to be governed by the unit price bid for the class of which there had been an increase over the estimate and by the terms of the contract as found in the specifications.”

It was further stated that the amended complaint, while sufficient as a complaint on a contract, was not sufficient to warrant recovery for the “force account” items alleged. Thus this court, in its former opinion, not only decided that the appellees' amended complaint was good as against demurrer, but in doing so was required to and did determine the theory thereof. That opinion is binding in this appeal. Lille v. Trentman (1891) 130 Ind. 16, 29 N. E. 405;Board v. Bonebrake (1896) 146 Ind. 311, 45 N. E. 470;Barrett v. State of Indiana (1911) 175 Ind. 112, 93 N. E. 543;Gardner v. Evansville Improvement Co. (1924) 195 Ind. 471, 145 N. E. 923; Ewbanks Manual of Practice (2d Ed.) § 250.

On the first trial of this case, the appellant requested the court to find the facts specially and state its conclusions of law thereon. This the trial court refused to do, and error was assigned on this action of the trial court in the former appeal. It was held that section 394 of the Code of Civil Procedure (section 603, Burns' Ann. St. 1926) applied and the trial court erred. It was for this error that the case was reversed, and a new trial had, from which this appeal is taken. Accordingly, in the last trial, the court made a special finding of facts, and stated its conclusions of law thereon.

Chapter 53, Acts of 1919, p. 119, sections 8268-8305, Burns' Ann. St. 1926, created the state highway commission. This commission consists of three divisions, viz. construction, maintenance, and auditing. The chief of the division of construction is known as the chief engineer, and, under the direction of the director of the commission, has supervision and management of the work under his division and is responsible therefor. He is required to be a competent and skillful civil engineer, experienced and skilled in highway construction and improvement; he has supervision of all highway and bridge construction. It is his duty to prepare plans and specifications for all state highways. The director may authorize partial payment to any contractor performing work, as the same progresses. “On new construction work, there shall not be paid to exceed ninety per cent. of the chief engineer's estimated cost of the completed work.” Burns' Ann. St. 1926, § 8286. When work has been fully completed, it may be approved, accepted, and paid for in sections of not less than a mile, if the contractor files a bond that such section shall be in good condition upon final completion of the whole work.

[2][3] An examination of the act leads to the inevitable conclusion that it was the intention of the Legislature to establish a commission, vested with broad and comprehensive powers, having for its purpose the establishment, construction, and maintenance, as expeditiously as conditions would permit, of a public highway system for the state. While the act expresses the general method of procedure to be followed in the accomplishment of some of its purposes, and sets out specifically the form of bond to be required of contractors for work, it is a significant fact that, while contracts for work must be in writing, there is no form of contract, nor are there any prescribed conditions to be inserted in contracts, contained in the act. We conclude, therefore, that the form and conditions of the contracts for work were matters to be determined upon by the state highway commission, subject to the statute and the approval of the Attorney General, as to legality and form. Section 8287, Burns' Ann. St. 1926; Donnelly, Law of Public Contracts, § 17. The state highway commission has the power to formulate and enter into any contract within the purpose of its creation, which is not prohibited by statute or against public policy. Schipper v. City of Aurora (1889) 121 Ind. 154, 22 N. E. 878, 6 L. R. A. 318.

[4] “In entering into the contract it [the state] laid aside its attributes as a sovereign, and bound itself substantially as one of its citizens does when he enters into a contract. Its contracts are interpreted as the contracts of individuals are, and the law which measures individual rights and responsibilities measures, with few exceptions, those of a state whenever it enters into an ordinary business contract.” Carr v. State (1891) 127 Ind. 204, 26 N. E. 778, 779, 11 L. R. A. 370, 22 Am. St. Rep. 624;City of Indianapolis v. Indianapolis, etc., Co. (1916) 185 Ind. 277, 113 N. E. 369;Cleveland, etc., Co. v. State of Ohio (1912) 85 Ohio St. 251, 97 N. E. 967, 39 L. R. A. (N. S.) 1219.

The validity of the contract as originally entered into is not questioned in any way. It was accompanied with plans, specifications, and profiles prepared by the chief engineer, and it was upon these as so prepared that the appellees submitted their bid. The original contract price for the work was $62,423.35, made up of the following items, to wit:

+-----------------------------------------------------------------------------+
                ¦                    ¦                           ¦Unit Price     ¦       ¦    ¦
                +--------------------+---------------------------+---------------+-------+----¦
                ¦Quantities          ¦                           ¦Dols.     ¦Cts.¦Dols.  ¦Cts.¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦92,727 Cu. yd.      ¦Excavation                 ¦          ¦45  ¦$41,727¦15  ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦                    ¦Earth                      ¦          ¦20  ¦558    ¦80  ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦2,794 Cu. yd.       ¦Special Borrow             ¦          ¦    ¦       ¦    ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦177.7 Cu. yd.       ¦Class A Concrete in        ¦20        ¦00  ¦3,554  ¦00  ¦
                ¦                    ¦Headwalls                  ¦          ¦    ¦       ¦    ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦229.2 Cu. yd.       ¦Class A Concrete in        ¦20        ¦00  ¦4,584  ¦00  ¦
                ¦                    ¦Culverts                   ¦          ¦    ¦       ¦    ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦259.4 Cu. yd.       ¦Class B Concrete in        ¦18        ¦00  ¦4,660  ¦20  ¦
                ¦                    ¦Culverts                   ¦          ¦    ¦       ¦    ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦                    ¦Deformed Steel Bars        ¦          ¦    ¦       ¦    ¦
                ¦24,517 Pounds       ¦Reinforcing Concrete       ¦          ¦05  ¦1,225  ¦85  ¦
                ¦                    ¦Structures                 ¦          ¦    ¦       ¦    ¦
                +--------------------+---------------------------+----------+----+-------+----¦
                ¦640 Lin. ft.        ¦New 15 inch Reinf. Conc.   ¦2         ¦321 ¦1,485  ¦44  ¦
                ¦                    ¦Pipe                       ¦

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