OPINION
HENLEY, J.
Appellee was the plaintiff in the lower court. His complaint
consisted of four paragraphs. Appellant filed a motion to
require appellee to make the first and third paragraphs of
complaint more specific. This motion was overruled.
Appellant's demurrer, directed to each paragraph of
complaint, was also overruled. Appellant answered in four
paragraphs, the fourth paragraph being a counterclaim. Each
paragraph of answer and the counterclaim were held sufficient
as against a demurrer for want of facts. A reply in general
denial completed the issues. The cause was tried by a jury,
resulting in a verdict for appellee, and, over
appellant's motion for a new trial, judgment was rendered
in favor of appellee for $ 1,950.75, the amount of the
verdict. It is assigned as error that the court erred in
overruling the demurrers to each paragraph of the complaint;
that the court erred in overruling the motion to make the
first and third paragraphs of the complaint more specific;
that the court erred in overruling appellant's motion for
judgment upon the answers to interrogatories, and that the
court erred in overruling the motion for a new trial.
The
first and third paragraphs of complaint are based upon a
written contract, a copy of which is filed with and made a
part of each paragraph. The second and fourth paragraphs of
complaint are for work and labor done, the work and labor
done and claimed for under the second paragraph being the
same as is claimed for under the written contract; the work
and labor claimed for in the fourth paragraph being other and
different work. The demand is for a judgment for the balance
due upon the written contract and the additional amount
claimed under the fourth paragraph of complaint. The
contract, which is the foundation of the
first and third paragraphs of complaint, is as follows:
"This indenture witnesseth that the Wysor Land Company
has this day bargained and sold, and do hereby sell, to Levi
J. Jones, of the city of Muncie, Delaware county, State of
Indiana, lots one, two, three, four, five, six, seven, eight,
nine, ten, eleven, twelve, and thirteen, in block number
nineteen in the Whitely Land Company's second addition to
the city of Muncie, State of Indiana, for and in
consideration of the sum of $ 3,000, to be paid for on the
terms and conditions as follows: The said Levi J. Jones
hereby agrees to construct by grading and graveling Columbus
avenue, Mulberry street, the north end of Jefferson street
from the point where now finished, Madison street, Myrtle
avenue, and Maple avenue in that portion of the Whitely Land
Company's second addition to the city of Muncie, as
aforesaid, now owned and held by the Wysor Land Company as
aforesaid; the said streets and avenues to be constructed to
a final completion in the order above named, grading to the
survey and plats of the civil engineer under the directions
of our general manager, W. J. Hilligos, who shall have charge
and direction of said work as the same shall progress from
time to time as the Wysor Land Company may direct. It is also
agreed that the said Jones shall have credit on said purchase
price of said lots herein agreed upon to the full amount of
the cost price on the completion of Columbus avenue and
Mulberry street, and in the construction of all other streets
herein named as soon as the streets are finished. The price
agreed upon at which said Jones shall grade and gravel said
streets and avenues aforesaid is fifteen cents per cubic yard
for removing the dirt from said streets, which is to be
placed on lots and fills as the work progresses, and as may
be directed by our manager, said Hilligos. The gravel
necessary to complete said streets is to be furnished by the
Wysor Land Company at their gravel bank, located on the bank
of White river, in the said Whitely Land Company's first
addition, without cost to said Jones; he to
receive the sum of forty-five cents per cubic yard for
hauling and placing the same upon the streets as aforesaid.
It is further agreed and understood by the parties hereto
that, as soon as the said Jones shall have done work and
completed said streets in the order named to the amount of $
1,000, the said Wysor Land Company is to execute to the said
Jones their warranty deed to said lots aforesaid, and the
said Jones is to execute his note and mortgage to the said
Wysor Land Company in the sum of $ 2,000, the balance of the
purchase price of said lots, due in one year from the date of
this agreement. It is further agreed and understood that the
work of the construction of the streets and avenues as
aforesaid is to apply from time to time as estimates may be
made to said ends until the full amount shall have been paid.
It is also agreed by said Levi J. Jones as a further
consideration of the purchase price of said lots as
aforesaid, that one-half the cost price of the construction
of Madison street from the center of Columbus avenue north to
the banks of White river shall be opened and paid for by him
as the same may appear from the engineer's estimate with
the price of grading and graveling herein named; the said
Jones to allow the said land company twenty cents per cubic
yard for the gravel necessary to complete the same. Work upon
the completion of this contract shall be commenced at once,
and continue daily and as fast as the weather shall permit,
and all the streets and avenues named are to be finally
completed by June 1, 1896. Witness our hands and seals this
9th day of November, 1895. Levi J. Jones. Wysor Land Co., by
D. W. C. Bidwell, Pres."
It is
alleged in the first paragraph of the complaint that by the
terms of this contract one William J. Hilligos was made the
general manager for the appellant, and authorized to direct
superintend, and oversee the performance of all the work
necessary to be done under this contract; that he was
empowered by appellant to determine when and how such work should be done, and to determine when said
work was completed in accordance with the said contract, and
to accept said work when completed; that said Hilligos did
superintend and direct appellee in the performance of all
said work until appellee had fully and finally completed the
same according to said contract, and according to the survey
and plat as furnished him by the civil engineer, and
according to the directions of the said Hilligos, and to the
satisfaction of said Hilligos, who accepted said work of
appellee, as...
