City of New Albany v. Iron Substructure Co.

Jordan, J. Action by appellee against appellant to recover the contract price of a bridge constructed by the former over a certain stream, on one of the public streets within the city of New Albany, a municipal corporation organized under the laws of this State. Upon the trial a judgment was rendered in favor of appellee for the sum of four thousand one hundred and dollars. From this judgment this appeal is prosecuted. — 502 — Ten errors are assigned: First. That the complaint does not state facts sufficient. Second. Overruling demurrer to complaint. As the objections, if any, to the pleading assailed, can be more effectually presented by the second assignment than by the first, the latter will not be considered. The sufficiency of the complaint is called in question only upon the ground that it is based upon a written contract, and that neither the original nor a copy thereof is filed therewith. Since the filing of appellant's brief, however, upon a certiorari awarded by this court, this omission in the record has been supplied, and the objection is now no longer available. The third, fourth, fifth and sixth assignments are not discussed by appellant, and therefore are waived. The next error presented and discussed is the seventh: “That the court erred in sustaining the demurrer to the seventh paragraph of defendant’s answer.” Appellee’s learned counsel contend that by reason of the fact that this demurrer is omitted from the record, this court ought not to consider this assignment. However, as the trial court sustained the demurrer,'we must disregard its absence from the transcript, and presume that in form and in stating the prescribed grounds that it was in compliance with the provisions of the statute in relation thereto. Had the assignment been upon overruling the demurrer, its omission would have presented a different question. Upon examination, we find that the original answer contains but five paragraphs. Upon an extended search through the voluminous record (unaided by counsel for appellant by citation in his brief, as to page and line) we find in the proceedings of the case, at a subsequent term of the court, that two additional paragraphs of answer, numbered six and seven, were filed. We may — 503 — here suggest that a more proper and specific assignment would have been to have stated that the court erred in sustaining the demurrer to the seventh additional paragraph of answer. However, waiving this questionable assignment of error in this respect, we have examined this seventh paragraph, and find that it substantially contains the same facts set up in the sixth, to which the demurrer was overruled, hence it follows that the ruling of the court in sustaining the demurrer to the former is upon any view of the question harmless to appellant, as it could avail itself of the same defense by reason of its sixth paragraph which remained as part of its answer. By the eighth assignment, appellant seeks to controvert the action of the court in submitting the evidence taken before a former master coiftmissioner to another master subsequently appointed. This action of the trial court we can not review, for the reason that the motion, and the grounds therein stated upon which this ruling was based, are not made a part of the record by a bill of exceptions or order of court. Elliott App. Proced., sections 190, 191, 814, and cases there cited. The next error of which appellant complains is the ninth: “Overruling the motion for a new trial.” The first ground stated in this motion is the one embraced in the eighth assignment of error, and if it could be conceded that it was correctly assigned as a cause for a new trial it must, in any event, be dismissed from further consideration for the reason herein stated,- that the motion upon which the ruling of the court arose is not in the record. By the second reason assigned for a new trial, appellant endeavors to call in question the decision of the court in not permitting certain witnesses offered by it to testify at the trial. It appears from the record that by the agreement of parties a master commissioner was ap — 504 — pointed by the court to take and report the evidence; this duty was discharged by the master and he reported the same to the court, which report was filed. The evidence set forth in this report was used by the parties on the trial of the cause, and is that upon which the court made its finding and rendered judgment. This evidence is, however, not brought into the record by a proper bill of exceptions. An attempt seems to have been made to incorporate this report, and the evidence therein set out, by a direction to “Here Insert.” It could not be embodied in the bill in this manner. It must be inserted in the bill before the same is signed by the judge. See Patterson v. Churchman, 122 Ind. 379; Ohio, etc., R. W. Co. v. Voight, Admr., 122 Ind. 288; Wagoner v. Wilson, 108 Ind. 210; Barnes v. Turner, 129 Ind. 110; Pennsylvania Co. v. Brush, Admx., 130 Ind. 347; McCoy v. Able, 131 Ind. 417. Where the master is merely to report the evidence to the court his report must be made a part of the record on appeal by a bill of exceptions or order of court. King v. Marsh, 37 Ind. 389; Stanton v. State, ex rel., 82 Ind. 463; Lee v. State, ex rel., 88 Ind. 256; McNaught v. McAllister, 93 Ind. 114. For the reason stated, we must hold that the evidence is not in the record. It clearly appears, in the case at bar, that the evidence excluded by the court depends for its pertinency upon other evidence that must have been introduced upon the trial, and as none of this is contained in the record, it is not made to affirmatively appear that there was any error in rejecting the offered testimony, and we must presume that the court below excluded the evidence, for the reason that none was given that rendered that which was offered and rejected admissible. — 505 — Conden v. Morningstar, 94 Ind. 150, and cases cited; Elliott’s App. Proced., section 721. It follows, therefore, that the questions sought to be raised by appellant in this court upon the alleged error in overruling the motion for a new trial must be dismissed without consideration upon their merits. Under the tenth error appellant assails the conclusions of law stated by the court upon its special finding of facts, for the sole reason, as contended, that the appellant’s common council had no power to procure the bridge in question to be constructed, for the reason that this power was vested in the board of- commissioners of Floyd county, wherein said city is situated, by virtue of an act of the General Assembly, approved March 7, 1885. Elliott’s Supp., section 1521, R. S. 1894, section 3283. This section provides that all bridges, the estimated cost of which shall exceed $500, to be built within the limits of any town or city, shall be constructed by the board of commissioners, etc. The court, inter alia, in its special finding, found that the common council of the city of New Albany, by express authority, of two-thirds of all the members constituting said council, entered into and executed the contract with appellee for the construction of the bridge in controversy, on lower Seventh street of said city over Falling Run creek, at a point where said stream passes through and crosses that street; that appellee built the bridge in accordance with said contract and fully performed its part of the same; that at the time appellant entered into said contract a culvert bridge, or stone arch, which had been formerly erected by appellant over said creek at the place where the bridge was built by appellee; had caved in and left the street in a bad and dangerous condition, and it had become necessary to construct another bridge in place of this arch — 506 — in Order to make the street passable and safe for the public. Section 3161, R. S. 1881, as amended (see section 3623, R. S. 1894), grants to cities full power and authority over the streets and bridges and the construction of the latter. Therefore, under the facts, as found in this case, the contention of appellant that by reason of the act of 1885, supra, its common council had been deprived of its power to procure the building of this bridge, the cost of which was over $500, and that its act in so doing was. ultra vires, and hence it is not liable in this action, has no support under the law, and can not be sustained. While the act of 1885 in question imposes the duty of the construction of bridges in towns and cities in certain cases upon the board of commissioners, still it can not be held that this act was intended to and does withdraw all power from these municipalities to build bridges when they deem it proper to do so, especially under the facts and circumstances as they existed in the case at bar. See City of Wabash v. Carver, 129 Ind. 552. We do not think that it was the intention of the Legislature, by the enactment of the statute of 1885, to deny the right to cities or towns to construct bridges like the one in question, provided these corporations see fit and proper to claim and exercise the power to construct the same at their own expense. Section 1521, Elliott’s Supp., and section 3283, R. S. 1894, and section 3623, supra, must be construed together, and so construed as to produce consistency and harmony. See Lutz v. City of Crawfordsville, 109 Ind. 466. While the rule that a municipal corporation can not make a binding contract, if the same is wholly beyond the express or implied powers with which it is invested, is well established; however, it can not be held that — 507 — the statute of 1885, supra, by|imposing the duty therein mentioned in regard to certain bridges upon the board of commissioners, wholly destroyed and rendered nugatory the power relating to the construction of bridges, with which appellant was vested by section 3623, supra. With this view of the case, the rule or principle of law above stated can not aid appellant to relieve itself from liability upon its contract. Filed March 14, 1895; petition for a rehearing overruled June 4, 1895. Without taking any steps to have the board of commissioners discharge the duty imposed upon it by this statute, appellant saw fit and proper to claim and exercise the right or power to procure the bridge in controversy to be built by appellee, and the latter in good faith having entered into the contract, spent its time and money in the construction thereof, it can not now be heard to urge in defense of the payment of the price therefor that its action in executing the contract and procuring the bridge to be built was beyond the scope of its power, when it appears that the contract into which it entered was neither prohibited bylaw nor unauthorized. See Beach Pub. Corp., sections 223, 224, 225, 226, 227. The question raised and discussed by appellee as to the statute of 1885 being unconstitutional under the conclusion which we have reached, need not be considered. Finding no available error in the proceedings, the judgment is affirmed at the cost of appellant.