Young v. Young

• Decision Date: 31 January 1899
• Docket Number: 2,651
• Citation: 52 N.E. 776,21 Ind.App. 509
• Parties: YOUNG ET AL. v. YOUNG ET AL
• Court: Indiana Appellate Court

52 N.E. 776

21 Ind.App. 509

YOUNG ET AL. v. YOUNG ET AL

No. 2,651

Court of Appeals of Indiana

January 31, 1899

From the Tipton Circuit Court.

Affirmed.

Oglebay & Oglebay and Gifford & Coleman, for ap-appellants.

Dan Waugh, John P. Kemp and James N. Waugh, for appellees.

OPINION

HENLEY, J.

This action was begun by appellee William R. Young against appellants Emanuel R. Coxen and Samuel J. Porter, as principals, and William B. Young, William J. Minor, Leonard Compton, Joseph A. Innis and Seneca G. Young, as sureties on a bond given to the trustees of the school city of Tipton, to secure the faithful performance of a contract entered into by the principals on said bond and such trustees, wherein said Coxen and Porter agreed to build a schoolhouse in the city of Tipton. The bond sued upon, and which is made a part of the complaint, is as follows: "Know all men by these presents, that E. R. Coxen and S. J. Porter, contractors, as principals, and--as sureties are jointly and severally held and firmly bound unto E. H. Shirk, A. F Grove, and A. F. Moore as school trustees of the city of Tipton, Indiana, or their successors, in the penal sum of Ten Thousand ($ 10,000) dollars, for the payment of which, well and truly to be made and done, we jointly and severally bind ourselves, our heirs, executors, administrators, and assigns. Signed and sealed and dated this 28th day of May, 1894. The condition of the above obligation is such that the said E. R Coxen and S. J. Porter, contractors, of Elwood and Tipton Indiana, have filed their proposal, which is made a part hereof, for furnishing such materials as is specified, and performing all labor necessary to erect, finish, and complete a two-story brick school building, with stone foundation, on school lot at the southwest corner of Oak and Armstrong streets, in the city of Tipton, Tipton county, Indiana according to the plans, specifications, and detail drawings prepared by James Beuff, architect, of Kokomo, Indiana, and adopted by said school board, and which plans, specifications, and detail drawings are considered to be, and are hereby made a part hereof. Now, if the said E. R. Coxen and S. J. Porter will enter into a written contract with the said Tipton school trustees, for the proper execution and completion of said building, and do faithfully perform and execute the work so bid for to the satisfaction and acceptance of the superintendent in charge of said work, and to the satisfaction and acceptance of said school trustees, and in accordance with and agreeable to the plans, specifications, and detail drawings aforesaid, and in accordance with said contract to be made as aforesaid, and that the said contract, if awarded, shall be made a part hereof, and promptly pay all the debts incurred in the prosecution of said work, including labor and materials furnished, and that they will indemnify and save harmless the said school trustees from any and all liabilities to any person, persons, or corporation on account of any damage to the property of any person, persons, or corporation arising from any cause whatever in any way connected with the construction of the work so bid for, then this bond be void; else in full force and effect. E. R. Coxen, S. J. Porter, W. B. Young, Wm. J. Minor, L. Compton, J. A. Innis, S. G. Young." The complaint avers that appellee William R. Young furnished labor and material in the construction of said building; that the material so furnished consisted of the paint to be used to paint said building, and the labor furnished was in putting the paint upon the building. The execution of the bond, as set out herein, is alleged, and the further fact that there is due and unpaid to said appellee, for such labor and material, the sum of $ 125, for which he demands judgment. The defendants who were sureties on said bond in suit filed a demurrer to the complaint, alleging as cause want of sufficient facts and a defect of parties defendant. This demurrer was overruled. The appellee Compton, who was one of the defendants in the lower court, filed a cross-complaint against appellee Young and the principals and his co-sureties on the bond in suit. The cross-complaint of Compton is substantially the same as the complaint of appellee Young, and is founded on a claim for labor and material furnished by said Compton in the construction of said school building under the contract of Coxen and Porter. Appellants demurred to the cross-complaint of Compton for the same reasons as are stated in the demurrer filed to the complaint. This demurrer was overruled. Afterwards appellants William B. Young, Seneca G. Young, Joseph A. Innis, and William J. Minor filed a cross-complaint against Emanuel R. Coxen, Samuel J. Porter, William R. Young, "Lenn" Compton, and the school city of Tipton, which admits the execution of the bond in suit, the building of the schoolhouse by the contractors Coxen and Porter, and that there are debts, due and owing from said contractors to the appellees Young and Compton, but it avers that the cross-complainants are the sureties on the bond in suit, and that the school city of Tipton owes to said contractors a sum of money sufficient to pay all the debts due on account of said building, and that said Coxen and Porter are insolvent. The relief asked in said cross-complaint is that the said school city of Tipton be required to account for the money due from it to the said Coxen and Porter, and pay the same into court, to be applied upon this indebtedness of Coxen and Porter under said contract due to William R. Young and Leonard Compton. A demurrer for want of facts directed to said cross-complaint by the appellees was sustained. Af...