Union Traction Company of Indiana v. Ross

• Citation: 125 N.E. 72,71 Ind.App. 473
• Decision Date: 26 November 1919
• Docket Number: 10,116
• Parties: UNION TRACTION COMPANY OF INDIANA v. ROSS, RECEIVER
• Court: Indiana Appellate Court

125 N.E. 72

71 Ind.App. 473

UNION TRACTION COMPANY OF INDIANA v. ROSS, RECEIVER

No. 10,116

Court of Appeals of Indiana

November 26, 1919

From Grant Circuit Court; J. F. Charles, Judge.

Action by Walter L. Ross, as receiver of the Toledo, St. Louis and Western Railroad Company, against the Union Trantion Company of Indiana. From a judgment for plaintiff, the defendant appeals.

Reversed.

J. A VanOsdol, for appellant.

Geddes VanBrunt and C. A. Schmettau, for appellee.

OPINION

ENLOE, J.

This was an action by appellee, as receiver of the Toledo, St Louis and Western Railroad Company, to recover the cost of certain repairs made to certain street crossings, therein mentioned. The action was based upon three certain contracts concerning the maintenance of the crossings which it was alleged had been repaired, which said contracts had been entered into by and between former owners of said roads, and to which ownership the parties hereto were severally the successors.

One of said contracts related to the crossing of the tracks of said parties on Railroad avenue, Marion; another to the crossing on South Washington street, Marion; and the other to the crossings at Wabash street and at Kentucky street, in the city of Kokomo. The complaint was in three paragraphs, each founded upon one of the above-mentioned contracts. In each of said contracts the street railroad company had agreed in substance that it would thereafter at all times keep and maintain, at its own expense, said crossings and renewals thereof, to the approval of the party of the first part--the steam road. The contracts are very similar to those upon which the action was founded in cases of Evansville etc., Traction Co. v. Evansville Belt R. Co. (1909), 44 Ind.App. 155, 87 N.E. 21; Baltimore, etc., R. Co. v. Cincinnati, etc., R. Co. (1913), 52 Ind.App. 639, 99 N.E. 1018; and Vandalia R. Co. v. Fort Wayne, etc., Traction Co. (1918), 68 Ind.App. 120, 118 N.E. 839.

Two of the contracts were made prior to the act of 1901 (Acts 1901 p. 461, §§ 5676-5677 Burns 1914) and one was made subsequently to the taking effect of said act.

To each of said paragraphs of complaint a demurrer was interposed with memorandum as required by statute, which demurrer was by the court overruled, and appellant then answered said complaint in four paragraphs, to each of which, except the first, the same being a general denial, a demurrer was sustained.

There was a trial by the court, which, upon request, made a special finding of the facts and stated its conclusions of law thereon, favorable to appellee, to which appellant duly excepted, and judgment was rendered accordingly.

Appellant then moved the court to modify the judgment, and, this motion being overruled, it filed its motion for a new trial, which was also overruled, and it now prosecutes this appeal.

The errors relied upon for a reversal are: (1) Error in overruling demurrer to complaint; (2) error in conclusions of law; (3) error in overruling motion to modify judgment; (4) error in overruling motion for new trial.

The alleged deficiencies in the several paragraphs of complaint, as stated in the memorandum filed with said demurrer, were: (1) The facts stated show no privity of contract between the parties thereto; (2) the facts stated show there was no consideration to support the promise sued on; and (3) the obligations of the parties in the matter in question are fixed by statute.

The language of the first paragraph of the complaint herein whereby it was sought to charge appellant as being in privity with said contract sued on, is as follows: "Plaintiff says that the defendant herein has, since the execution of...