Talbott v. Town of New Castle

• Decision Date: 27 June 1907
• Docket Number: 21,037
• Citation: 81 N.E. 724,169 Ind. 172
• Parties: Talbott et al. v. Town of New Castle
• Court: Indiana Supreme Court

81 N.E. 724

169 Ind. 172

Talbott et al. v. Town of New Castle

No. 21,037

Supreme Court of Indiana

June 27, 1907

Rehearing Denied October 18, 1907.

From Delaware Circuit Court; Joseph G. Leffler, Judge.

Suit by Morris A. Talbott and others against the Town of New Castle. From a decree for plaintiffs for less than their claim, they appeal. Transferred from Appellate Court under § 1337o Burns 1901, Acts 1901, p. 565, § 15.

Affirmed.

McConnell & Fickle and Charles W. Miller, for appellants.

Forkner & Forkner, for appellee.

OPINION

Montgomery, J.

Appellants constructed a sewer system within and for the corporate town of New Castle, and upon completion of the same brought this action to compel payment of the contract price and for certain extra work done upon special orders. Appellee answered by general denial, and also filed a cross-complaint alleging a disagreement as to the amount due, and asking for an accounting, to which appellants answered in denial. A trial was had upon the issues so joined, a special finding of facts made by the court, and conclusions of law stated in favor of appellants in accordance with the facts found. A judgment was rendered for the sum so found due. The judgment further provided for payment out of assessments to be made against the property benefited, required appellee to cause the proper assessments to be made and collected and to issue and sell bonds to provide funds for the payment of such sum and exempted appellee from any personal liability, except for the costs of the action.

It is alleged upon this appeal that the court below erred in overruling appellants' demurrer to the cross-complaint, in each conclusion of law stated, and in overruling the motion for a new trial.

The finding of the court upon all the issues was that the appellants were entitled to recover upon their complaint. It is manifest that no reversible error could have been committed in overruling appellants' demurrer to the cross-complaint.

The conclusion of law stated by the court was as follows: "Upon the foregoing facts, I conclude that the law is with the plaintiffs. I therefore find that there is due the plaintiffs, upon said finding of facts, $ 61,174.76, as principal, and as interest thereon from January 1, 1903, the sum of $ 4,690.05, making the aggregate sum of $ 65,864.81, which plaintiffs are entitled to recover from defendant; that said sum is due from the defendant to the plaintiffs to be properly assessed against the properties benefited thereby." The conclusion of law is in appellants' favor, and in accord with the facts found, and consequently nothing appears upon the face of the record to sustain the assignment that the court erred in its conclusion of law.

The special findings of the court contained, among other facts, in substance, the following: That upon competitive bids appellants were duly awarded the contract to construct the sewer, and entered into a written agreement with appellee for the performance of the work, whereby appellants were to receive and accept

"as full compensation for all work, labor and material used in the construction of said sewers, and all things specified and required in the plans, specifications and profiles thereof, the sum of $ 1.14 per lineal foot of said sewers, measuring only the center line of said sewers including all branches and tributaries shown on the plans, profiles and specifications after completion, and not measuring service connections or any other lines specified and named in said specifications, it being the intention of this contract that the price aforesaid shall be taken and received as full and complete compensation for the full completion of said sewers, together with all the requirements and incidents thereto specified in the plans, specifications and profiles thereof."

It was further provided in the contract:

"The contractors shall do such extra work in connection with their contract as the engineer may, in writing, specially direct, and in a first-class manner, but no claim for extra work shall be allowed unless the same is done in pursuance of a written order, as aforesaid, to do the work as such, and the claim presented at the first estimate after the work is done. Payment therefor shall be made according to the schedule of prices herein contained, as far as

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