Trustees of the Wabash & Erie Canal v. Bledsoe

• Decision Date: 27 May 1854
• Citation: Trustees of the Wabash & Erie Canal v. Bledsoe, 5 Ind. 150 (Ind. 1854)
• Parties: The Trustees of the Wabash and Erie Canal v. Bledsoe and Another
• Court: Indiana Supreme Court

5 Ind. 150

The Trustees of the Wabash and Erie Canal v. Bledsoe and Another

Supreme Court of Indiana

May 27, 1854

ERROR to the Vigo Circuit Court.

The judgment is affirmed with 5 per cent. damages and costs.

Samuel B. Gookins and W. D. Griswold, for the plaintiffs.

John P Usher, for the defendants.

OPINION

Perkins J.

Assumpsit upon the counts for work and labor, &c., in the construction of a section of the Wabash and Erie canal.

The issues were, non assumpsit, and an issue upon a plea of payment.

Jury trial, finding for the plaintiffs, new trial denied, and final judgment on the verdict.

The evidence is upon the record, and shows that the construction of the section of the canal in question, was first let to one John Shawn; that on account of his default, the contract with him was declared forfeited, by W. J. Ball, engineer, when about one-third of the work contracted for had been performed; and that the construction of the section was completed by Bledsoe and Pigg, who brought this suit.

The trustees deny that it was upon their request that the section was completed, and, hence, they insist that they are not liable to pay for it.

An express request, as is well known, need not be proved. A request may be implied from circumstances.

It appears in this case that the trustees, after the contract with Shawn had been annulled, were anxious for the earliest possible completion of the section, and passed an order to that effect; that their engineer, Mr. Wilde, superintended the work done by Bledsoe and Pigg, told them, from time to time during its progress, to press on, complete the section, and that they should be paid for it; that there were from 1,800 to 2,000 dollars remaining of the estimated cost at the contract price, which should be paid to them; and it further appears that the trustees accepted and are using the section as finished.

We think an assumpsit might be implied from these circumstances.

But as further evidence tending to establish it, Bledsoe and Pigg offered in evidence on the trial an affidavit made in the case at a former term of the Court, by W. J. Ball, upon which the trustees asked and obtained a continuance. The affidavit states that the affiant "is informed that this suit is brought to recover money for work and labor, and materials and money done and expended by Bledsoe and Pigg for the trustees, on section sixty-two of the Wabash and Erie Canal. Affiant says that he is resident engineer on said canal, and has the superintendence of the construction of all its various sections; that N. R. Wilde is, and has been, a subordinate engineer to affiant, and, under him, has had the superintendence of the work of a very considerable part of said canal; that said section sixty-two was originally let by a written contract, to one John Shawn, who, after performing a considerable part of the work, failed to prosecute the same; that afterwards said Wilde was constituted the agent of the trustees to procure the completion of said section, and was furnished by them with money to pay for the same; that it was completed and paid for, as appears from the books of the office of engineers of said canal; that the entries in said books, so far as regards said section, were made by the clerk in the office, on the report of said Wilde. This affiant has been informed by said Wilde, that Bledsoe and Pigg, after the abandonment of said section by Shawn, made a verbal contract with him, said Wilde, as agent of the trustees, to finish said section; that they did finish it, and were paid by said Wilde the entire price for the same."

The affidavit further states the inability of Wilde to attend at that term of the Court, that he is the only witness, &c.

...