McKee v. City of Greensburg

Gillett, J. Appellant instituted this action against appellee to recover damages against it for alleged breach of contract. He charges that appellee’s common council refused to permit him to improve a street after accepting his "bid, made pursuant to an advertisement for bids for the performance of such work. A demurrer was sustained to the amended complaint, and a judgment followed that appellant take nothing. The history of the proceedings before the common council, as set out in the amended complaint, discloses that the proceedings were had under §4288 et seq. Burns 1894, commonly known as the Barrett law. As it appears from the amended complaint that the common council entered a resolution purporting to rescind its action in accepting appellant’s bid, the presumption must be in favor of such official action. State v. Wenzel, 77 Ind. 428; Adams v. Davis, 109 Ind. 10; Sanders v. Hartge, 17 Ind. App. 243. It is therefore clear that the burden was on appellant to [379] show that' jurisdiction had attached to make the improvement. Barber Asphalt Pav. Co. v. Edgerton, 125 Ind. 455. We are unable to determine from the vague allegations of the complaint as to the character of the proposed improvement whether the improvement was of such a nature that the common council had authority to order it made under said law. See Adams v. City of Shelbyville, 154 Ind. 467, 49 L. R. A. 797, 77 Am. St. 484; Taylor v. Patton, ante, 4. Appellant was charged with notice that the power of the common council to contract was limited, and, if it had embarked on an ultra vires undertaking, its action in refusing to permit appellant to proceed was proper. Other objections are urged to the complaint, but it is not necessary to consider them. Judgment affirmed.