Vandalia Railroad Company v. Stephens

• Decision Date: 30 October 1906
• Docket Number: 5,869
• Citation: 78 N.E. 1055,39 Ind.App. 11
• Parties: VANDALIA RAILROAD COMPANY v. STEPHENS
• Court: Indiana Appellate Court

78 N.E. 1055

39 Ind.App. 11

VANDALIA RAILROAD COMPANY v. STEPHENS

No. 5,869

Court of Appeals of Indiana

October 30, 1906

From Clinton Circuit Court; Joseph Claybaugh, Judge.

Action by Stephen T. Stephens against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Thomas & Foley, Guenther & Clark and John G. Williams, for appellant.

Joseph Combs, for appellee.

OPINION

ROBINSON, C. J.

Appellee recovered a judgment for the cost of erecting a fence along appellant's right of way. Overruling a demurrer to each of the two paragraphs of amended complaint and overruling appellant's motion for a new trial are assigned as errors.

The sufficiency of each paragraph of the complaint is questioned on the ground that no copy of the verified, itemized statement of the expenses of building the fence is filed with either paragraph. While the statute says that if the company neglects or refuses for sixty days "to pay said account" the landowner may bring suit and recover the reasonable value of such fence (§ 5324 Burns 1901, Acts 1885, p. 224, § 2), yet this itemized statement is not an account within the meaning of § 365 Burns 1901 § 362 R. S. 1881, providing that when a pleading is founded on an account the original or a copy must be filed with the pleading. The action is not based upon any demand arising out of any contract or other relation between appellee and appellant. The action is based primarily upon appellant's failure to perform a statutory duty. Appellee sues upon a claim he has against the company, and not upon an account which he has with the company.

"The primary idea of account, computatio," said Chief Justice Shaw in Whitwell v. Willard (1840), 1 Metc. 216, "whether we look to the proceedings of courts of law or equity, is some matter of debt and credit, or demands in the nature of debt and credit, between parties. It implies that one is responsible to another for moneys or other things, either on the score of contract or of some fiduciary relation, of a public or private nature, created by law, or otherwise." See Stringham v. Board, etc. (1869), 24 Wis. 594; Bouvier's Law Dict.

A claim is defined to be: "In a juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty." Anderson's Law Dict. See Burrill's Law Dict.; Prigg v. Pennsylvania (1842), 16 Peters 539, 615, 10 L.Ed. 1060. It is quite true that every account upon which a sum of money is, or is claimed to be, due to the person prosecuting it, is a claim, but every claim is not an account. An account must arise out of some contract or other relation between the parties. A claim may arise in the same manner, and it may also arise out of a tort.

The foundation of the action may be the work and labor done and the materials furnished, but the work and labor were not done nor the materials furnished by virtue of any contract express or implied, between the appellant and appellee. When the company failed to build the fence after the statutory notice had been given, it must have known that the landowner might build it and collect the cost. The purpose of the verified, itemized statement is to notify the company that the landowner has built the fence, and of the expense that has been incurred in building it. With this itemized statement the company has sixty days to investigate the correctness of the claim, and if not then paid the statute gives the landowner the right to sue and recover the reasonable value of the fence, together with reasonable attorneys' fees. When the landowner has complied with the statute he has a demand as of right against the company for the reasonable value of the fence built, and not a demand due him by virtue of having complied with any contract, express or implied,...