The Northeastern Reporter

curred expense to the amount of $36.50 in doing said work; that the services so rendered were necessary, and were reasonably worth said sum, and such amount was, by the trustee, duly certified to the auditor of said county, who placed the same on the proper tax duplicate, which said tax duplicate was, at the time of the commencement of this action, in the hands of the appellee Koontz, as treasurer of said county; that said amount of costs incurred by said trustee in cleaning out appellant's allotment, and placed upon the tax duplicate as aforesaid, has never been paid; that appellant did not fully clean out and repair his said allotment, or cause the same to be done, at any time to the acceptance of the said trustee; nor did he fully clean out and repair his said allotment or cause the same to be done according to the specifications furnished therefor. The court's conclusions of law stated upon the facts were as follows: First, that it was the duty of said trustee to employ laborers to repair plaintiff's allotment of said ditch, and to incur necessary costs and expenses in so doing, including the pay of laborers and of the surveyor or civil engineer and his per diem, as such trustee, and certify the same to the county auditor for collection by the county treasurer as other taxes are collected, and that the aggregate sum so certified by him is the reasonable and proper costs thereof incurred by him as such trustee; second, that such costs and expenses are a lien upon plaintiff's said land, and are unpaid; third, that the plaintiff is not entitled to the relief prayed for in his complaint, or to any other relief, in this action.

It seems to us that appellant in this case is without remedy. The manner of keeping a public ditch in repair is fully specified by statute. See sections 5637, 5638, Burns' Rev. St. 1894. The repairs must be made between the 1st days of August and November of each year. Notice must be given to the landowner prior to the 1st of August. The notice fixes the time within which the work must be completed. If the work is not done within the time fixed in the notice, it is made the duty of the trustee to proceed to complete such work and certify the costs thereof, including his own per diem, to the auditor of the county, who must place the same upon the tax duplicate, as other taxes, to be collected. The whole trouble, we think, grows out of the fact that appellant never finished his allotment. It was never accepted by the trustee. Appellant asked the trustee to accept the allotment before the time for its completion had expired. The trustee refused to do this, and specifically pointed out to appellant the defects in the work. This all occurred before the alleged acts of bad faith upon the part of the trustee. The finding of the court that the amount of the cost of the work which was certified against appellant is correct, that no part of it had been paid, and the further finding that the appellant

never did, at any time, clean out and repair his allotment to the acceptance of the township trustee, neither did he clean out and repair his said allotment or cause the same to be done at any time according to the specifications therefor, is, we think, amply sufficient upon which the court's conclusion of law could rest. The facts found make the cost of the repairs a just and legal claim against appellant's land. When the appellant failed to complete the work within the time specified, it became the duty of the trustee to complete it. The work was actually done by the trustee. Its value is found by the court to be the amount certified against appellant. The bad faith of the trustee in agreeing with appellant that he would permit appellant to perform a duty which the law placed upon the trustee cannot affect the validity of the claim. Appellant may not be without a remedy against the trustee upon the facts found, but the facts certainly would not authorize the court to relieve appellant from the payment of the cost of repairing his allotment. We find no error.

Judgment affirmed.

(28 Ind. App. £5.1

HOYLE v. STELLWAGEN et al. (Appellate Court of Indiana, Division No. 1. April 25, 1902.)

CONTRACTS-PROPER PERFORMANCE-CANCELLATION-DECISION BY ONE

PARTY-DAMAGES.

1. Where a contract for work to be done by plaintiff on defendant's building dictates the requirements to be observed by the contractor, and provides that, after due notice that the work is not progressing rapidly enough, or is not in accordance with the specifications, the contract shall be canceled, such provision does not give the other party to the contract the sole prerogative of deciding whether the work is being properly performed, and he is not justified in canceling the contract if the work is in fact being performed as called for in the contract.

2. When a contractor under a written contract for work on a building is stopped in the performance of the work by the other party in an action by the contractor on the special contract, the compensation for the work already performed is not measured by the mar ket price, but by the contract price.

Appeal from superior court, Lake county; H. B. Tuthill, Judge.

Action by John Stellwagen and others against William F. Hoyle. From a judgment for plaintiffs, defendant appeals. Reversed. C. F. Griffin, for appellant.

BLACK, J. The appellees sued the appellant for breach of contract in writing, whereby the appellees were employed by the appellant to do certain carpenter work in the construction of a school house, the breach alleged being the discharge of the appellees after having performed labor thereunder, and before the completion of the work; the appellees alleging that up to the time of their discharge they had complied with all the condi

tions of the contract on their part to be performed, and had ever since been willing and ready to perform the contract. The contract contained a provision as follows: "It is further agreed by and between the parties hereto that, after due notice in writing has been given that the work is not progressing rapidly enough, or that the work is inferior to that specified, in accordance with the plans and specifications and this contract, then this contract shall be canceled." It is contended on behalf of the appellant that this provision of the contract gave him the sole prerogative of deciding whether the work performed by the appellees was progressing rapidly enough, or whether it was inferior to that specified in the plans and specifications and the contract, and therefore that the court erred in instructing the jury, concerning the contract, as follows: "If the plaintiffs, up to the time of the service of the notice on them by defendant, had not, up to that time, committed a breach of it, then the defendant must be said to be the person who broke the contract," etc. Also: "That under the contract the defendant had no absolute right to declare the contract at an end, at his own will and pleasure, but only for good cause upon a nonperformance or other breach by plaintiffs." Also, that by the clause of the contract above quoted "it became the duty of the plaintiffs to perform the said work in a proper and workmanlike manner, and to so perform it as not to delay the other contractors or workmen upon other branches of the work being performed upon said building. By this is meant it was the duty of the plaintiffs to reasonably perform, and not unreasonably hinder others in their performance; and it is for you to determine in this case whether the plaintiffs, substantially and according to the terms of said contract, performed the work incumbent upon them, or whether they unduly hindered the work of the other contractors in an unreasonable manner." It is to be observed that the portion of the contract in question does not provide that the employer may cancel the contract at any time if the work be not satisfactory to him, or be not approved by him. The work was not of a kind to be done with primary or special reference to the private taste or individual liking or approval of the employer, but was to be done with special reference to the plans and specifications and the other provisions of the contract of employment. The notice in writing provided for was not to be a notice of his disapproval or dissatisfaction, but was to be due notice of certain facts in their nature capable of proof. We think a proper construction requires that this particular provision meant that when the certain specified breaches of the contract or either of those breaches had in fact taken place, then, after due notice thereof in writing, the contract should be regarded as canceled. We cannot conclude that a notice in writing of things which had no existence, of matters which could not be proved as facts,

would be the due notice contemplated by the parties. The matter was not left to the caprice of the employer. If the work was done in the manner and with the expedition contemplated by the other stipulations of the contract, the employer could not, under cover of the provision in question, repudiate the work so done as stipulated. The provision in question must be taken in connection with the other portions of the contract dictating the requirements to be observed by the contractors; and, so long as they were fulfilling such requirements, a notice that they were not doing so could not be said to be the notice indicated by the provision in question. We find no available error in the instructions above quoted.

One of the court's instructions complained of by the appellant was as follows: "If you find that the defendant, within the instructions herein given, was not warranted in canceling said contract, then the plaintiffs are entitled to recover the full contract price of said work, which is $850, less what it would have cost them to complete the same, and less the amount of the contract they had performed, whether paid for or not; and, in addition thereto, they are entitled to recover the fair market value at East Chicago [the place where the house was being constructed] of the work already performed by them, less the amount they had received therefor." The case presented by the instruction is not one where the work has been done or partly done by the contractor, but not in accordance with the contract, yet benefit necessarily has accrued to the employer, but the case supposed is one where the claim of recovery is based upon performance of the special contract of employment up to a stage where, without completion of the contemplated work according to the entire contract therefor, further progress has been stopped by the employer without fault or failure on the part of the contractor, who, in his action, has declared upon the special contract alone. In Suth. Dam. § 713, it is said: "In an action upon the contract against the employer for preventing complete performance, the contractor is entitled to recover the contract price for the work actually done, and, in the absence of other damages, the difference between that price and what it would have cost to perform the contract as to the residue." Where performance of such special contract is stopped by the direction of the employer, the contractor may recover for what has been done upon a quantum meruit, treating the contract as rescinded, though the recovery cannot exceed the value of the services at the contract price. In an action by the contractor upon the special contract he cannot recover anything as upon an implied contract, for where there is an express promise none can be implied. Therefore, in such an action, the compensation for work already done under the contract sued on cannot properly be measured by the market value of such work, but the value

thereof shall be estimated by the contract price. Expressions may be found which may seem to allow a different rule, but such expressions are inadvertent dicta, or, if not such, they cannot be permitted to control. See Meyer v. Hallock, 2 Rob. (N. Y.) 284; U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Wilson v. Bauman, 80 Ill. 493; Whitfield v. Zellnor, 24 Miss. 663; Atkinson v. Morse, 63 Mich. 276, 29 N. W. 711; Ricks v. Yates, 5 Ind. 115; Richardson v. Machine Works, 78 Ind. 422; French v. Cunningham, 149 Ind. 632, 49 N. E. 797; Schaffner v. Kober, 2 Ind. App. 409, 28 N. E. 871; Fulton v. Heffelfinger, 23 Ind. App. 104, 54 N. E. 1079, and cases cited.

Judgment reversed, and cause remanded for a new trial.

(28 Ind. App. 670)

GULLET v. GULLET. (Appellate Court of Indiana, Division No. 2. April 25, 1902.)

ADMINISTRATION OF ESTATES-CLAIM FOR WORK AND LABOR-PROMISE TO PROVIDE FOR SERVANT BY WILL STATUTE OF FRAUDS-QUANTUM MERUIT-LIMITATIONS

COMPLAINT-SUFFICIENCY.

1. Where services are rendered on an oral agreement to make provision for the servant by will, and the employer dies without making such provision, the servant may recover the value of his services from the estate on a quantum meruit, though the promise itself is within the statute of frauds.1

2. A cause of action on a promise to pay for services by will accrues at the employer's death, and limitations do not run until that time.

3. A paragraph of a complaint, averring that there was due plaintiff a certain sum for work and labor performed for defendant's intestate in his lifetime, between 1872 and 1886, under circumstances as follows: That decedent took plaintiff into his family to work for him, and promised to make suitable provision for plaintiff in his will in payment for such work; that plaintiff worked for decedent until he was 21; and that decedent died in 1900 without making any will or provision for plaintiff, etc., is bad because not showing performance of the agreement on plaintiff's part, the length of the service being alleged, but not the length of the term contracted for.

4. Another paragraph in the complaint, which failed to show performance of the agreement by plaintiff, and which in addition showed that he was a minor and failed to aver that he had been emancipated, was bad.

Appeal from circuit court, Washington county; D. M. Alspaugh, Judge.

Action by Alfred Gullet against Andrew Gullet, administrator. Judgment for plaintiff, and defendant appeals. Reversed.

Morris & Hottel, for appellant. Mitchell & Cauble, for appellee.

COMSTOCK, C. J. Appellee filed his claim against the estate of Andrew Gullet, deceased, in four paragraphs. The first alleged that

1 See Executors and Administrators, vol. 22 Cent. Dig. § 737 [h, 1]; Frauds. Statute of, vol. 23, Cent. Dig. 330 [b, f, g, ul; 1899 Dig. § 44; 1901B Dig. § 34.

there was due the plaintiff the sum of $2,000 for work and labor performed by him for Andrew Gullet in his lifetime, between the years 1872 and the 12th day of December, 1886, at the rate of $12.50 per month, for 100 months, which work and labor was performed under circumstances as follows: That said decedent took the plaintiff into his family to work for him, and promised to make suitable provision in his will for him in payment for such work. The claimant remained with and worked for decedent until he was 21 years of age, and that Andrew Gullet died on the 22d day of February, 1900, without making any will or provision for him, and that no part of said work had been paid for. Prayer for judgment for $2,000. The second paragraph is founded upon the same cause of action and covering the same period of time, but states that appellee was a minor when Andrew Gullet took him into his family, and the appellee worked for decedent until he (Alfred) was 21 years of age, and that decedent declared on various occasions that he would make suitable provision for claimant in fixing up his (decedent's) business in payment for such work and labor, but that he died on the 22d day of February, 1900, without doing so, and that no part of said work had been paid for. Prayer for judgment for $2,000. The verdict of the jury was founded upon the first and second paragraphs of complaint, and it is unnecessary to notice the remaining paragraphs. The cause was tried by a jury, which returned a verdict for the plaintiff, assessing his damages in the sum of $775, for which amount judgment was rendered. The first, second. and third specifications of error challenge the sufficiency of each paragraph of the complaint; the fourth questions the action of the court in overruling appellant's motion for a new trial.

Counsel for appellant contend that neither paragraph states facts sufficient to constitute a cause of action. It is urged that in each of them a contract is set up which is within the statute of frauds; that in an action on a spe cial contract there can be no recovery on a quantum meruit. The contract alleged, being void as within the statute of frauds, cannot be ratified by subsequent promises. Under the facts alleged, if the plaintiff was entitled to recover his cause of action accrued when he arrived at the age of 21 years. The sixyears statute applies to this kind of an aetion, and it began to run when the plaintiff arrived at the age of 21 years, in 1886. Each paragraph shows that the plaintiff's cause of action accrued more than six years before the death of defendant's decedent. The complaint should allege that the plaintiff had been emancipated.

But the complaint seeks to recover for services in a quantum meruit. Although an ae tion for damages for breach of the contract set out in the complaint would not lie as being within the statute of frauds, the remedy in an action on the quantum meruit will lie.

Taggart v. Tevanny, 1 Ind. App. 339, 27 N. E. 511; Wallace v. Long, 105 Ind. 522, 5 N. E. 666, 55 Am. Rep. 222. It is settled in this state that, on a promise to pay for services by will, the cause of action accrues at the employer's death, and the statute does not begin to run until the death of the promisor. See Woolen, Tr. Proc. §§ 755, 756; Simons v. Beaver, 16 Ind. App. 492, 43 N. E. 972, 45 N. E. 673; Schoonover v. Vachon, 121 Ind. 3, 22 N. E. 777. Suit was brought within six years of the death of the decedent, and was not, therefore, barred by the statute of limitations. Such a contract serves as evidence to rebut the presumption that the services were intended to be gratuitous. Taggart v. Tevanny, supra; Wallace v. Long, supra. Without the showing made of the circumstances under which the services were rendered, the cause would be barred by the statute of limitations; it being necessary, therefore, also to state facts showing the performance upon the part of the plaintiff of the agreement under which the promise was made.

ance.

The first paragraph is fatally defective because it does not aver the plaintiff's performThe length of service is alleged, but the length of the term contracted for is not stated. The second paragraph has the same defect. In addition, it contains no averment of emancipation. The emancipation of an infant means freedom from parental control. Such emancipation may take place in various ways; it may be inferred from the conduct of the parties. Robinson v. Hathaway, 150 Ind. 679, 50 N. E. 883. This paragraph does not aver emancipation, nor does it contain any statement of facts from which emancipation would be inferred. The services for which compensation is sought were rendered by a minor. The presumption is that the compensation would not be due to him. The paragraph in question does not show that appellee's parents are living. The complaint should show that the right to receive wages claimed was in the appellee. This it does not do.

The consideration of the overruling of the motion for a new trial is not necessary. The judgment is reversed, with instructions to the trial court to sustain the demurrer to the first and second paragraphs of the complaint.

(28 Ind. App. 674)

NICHOLS v. STATE. (Appellate Court of Indiana, Division No. 2. April 25, 1902.)

LOTTERIES - INFORMATION -SUFFICIENCY CRIMINAL LAW-ARREST OF JUDGMENT-MOTION-BILL OF EXCEPTIONS.

1. Burns' Rev. St. 1901, § 2171 (Horner's Rev. St. 1901, § 2077), makes it criminal to act as agent for any lottery scheme or gift enterprise. Burns' Rev. St. 1901, § 1824 (Horner's Rev. St. 1901, § 1755), only requires an indictment to set forth the offense charged in plain and concise language, and with such a degree of certainty that the court may render judgment according to the right of the case.

Held, that an information charging that defendant was the agent of a designated lottery scheme or gift enterprise was not invalid, as a mere conclusion, but was a sufficient allegation of a violation of the former statute.

2. Under Burns' Rev. St. 1901, § 1912 (Horner's Rev. St. 1901, § 1843), declaring that a motion in arrest of judgment in a criminal case is an application in writing, which may be granted if the grand jury had no authority to inquire into the offense charged, or if the facts stated in the indictment do not constitute a public offense, a motion in arrest must be in writing, and state the grounds therefor.

3. Burns' Rev. St. 1901, § 1916 (Horner's Rev. St. 1901, § 1847), requires bills of exceptious to be presented to the judges at the time of the trial, or within such time as the judges may allow, not exceeding 60 days, and requires exceptions to be taken on the trial. No exceptions were reserved on the rendition of a judgment in a criminal case, nor time asked to prepare a bill of exceptions; but exceptions were taken on the overruling of a motion for new trial, and 60 days given in which to file a bill of exceptions, which was filed within such time, but more than 60 days after the rendition of judgment. Held, that the bill so filed could not be considered on appeal.

Appeal from criminal court. Marion county: Fremont Alford, Judge.

Will Nichols was convicted of being an agent of a lottery scheme or gift enterprise, and he appeals. Affirmed.

Elmer Marshall, Henry Seyfried, John J. Rochford, and John M. Wall, for appellant. W. L. Taylor, Atty. Gen., John C. Ruckelshaus, Merrill Moores, and C. C. Hadley, for the State.

WILEY, J. Appellant was prosecuted upon an affidavit charging him with being an agent for a lottery scheme or gift enterprise. The prosecution originated in the police court of the city of Indianapolis, where he was found guilty. From the judgment pronouncing hinr guilty and assessing his punishment, he appealed to the Marion criminal court, where he was again tried and found guilty, and fined $200. He predicates error upon the overruling of his motion to quash the affidavit, overruling his motion for a new trial, and overruling his motion in arrest of judgment.

The statute upon which the prosecution rests is section 2171, Burns' Rev. St. 1901 (section 2077, Horner's Rev. St. 1901), and is as follows: "Whoever sells a lottery ticket, or tickets, or shares in any lottery scheme or gift enterprise, or acts as agent for any lottery scheme or gift enterprise, or aids any person or persons to engage in the same, or transmit money by mail or express, or otherwise transmits the same, to any lottery scheme or gift enterprise for the division of property, to be determined by chance, or makes or draws any lottery scheme or gift enterprise for a division of property not authorized by law, on conviction thereof, shall be fined in any sum not more than five hun dred dollars nor less than ten dollars." It will be seen that this statute, considered dis junctively, defines five distinct and separate

Judgment reversed, and cause remanded for a new trial.

(28 Ind. App. 670)

GULLET v. GULLET. (Appellate Court of Indiana, Division No. 2. April 25, 1902.)

ADMINISTRATION OF ESTATES-CLAIM FOR WORK AND LABOR-PROMISE TO PROVIDE FOR SERVANT BY WILL STATUTE OF FRAUDS-QUANTUM MERUIT-LIMITATIONS

COMPLAINT-SUFFICIENCY.

2. A cause of action on a promise to pay for services by will accrues at the employer's death, and limitations do not run until that time.

Appeal from circuit court, Washington county; D. M. Alspaugh, Judge.

Action by Alfred Gullet against Andrew Gullet, administrator. Judgment for plaintiff, and defendant appeals. Reversed.

Morris & Hottel, for appellant. Mitchell & Cauble, for appellee.

COMSTOCK, C. J. Appellee filed his claim against the estate of Andrew Gullet, deceased, in four paragraphs. The first alleged that

1 See Executors and Administrators, vol. 22 Cent. Dig. 737 [h, 1]; Frauds, Statute of, vol. 23, Cent. Dig. 330 [b, f, g, u]; 1899 Dig. § 44; 1901B Dig. § 34.

there was due the plaintiff the sum of $2,000 for work and labor performed by him for Andrew Gullet in his lifetime, between the years 1872 and the 12th day of December, 1886, at the rate of $12.50 per month, for 160 months, which work and labor was performed under circumstances as follows: That said decedent took the plaintiff into his family to work for him, and promised to make suitable provision in his will for him in payment for such work. The claimant remained with and worked for decedent until he was 21 years of age, and that Andrew Gullet died on the 22d day of February, 1900, without making any will or provision for him, and that no part of said work had been paid for. Prayer for judgment for $2,000. The second paragraph is founded upon the same cause of action and covering the same period of time, but states that appellee was a minor when Andrew Gullet took him into his family, and the appellee worked for decedent until he (Alfred) was 21 years of age, and that decedent declared on various occasions that he would make suitable provision for claimant in fixing up his (decedent's) business in payment for such work and labor, but that he died on the 22d day of February, 1900, without doing so, and that no part of said work had been paid for. Prayer for judgment for $2,000. The verdict of the jury was founded upon the first and second paragraphs of complaint, and it is unnecessary to notice the remaining paragraphs. The cause was tried by a jury, which returned a verdict for the plaintiff, assessing his damages in the sum of $775, for which amount judgment was rendered. The first, second. and third specifications of error challenge the sufficiency of each paragraph of the complaint; the fourth questions the action of the court in overruling appellant's motion for a new trial.

Counsel for appellant contend that neither paragraph states facts sufficient to constitute a cause of action. It is urged that in each of them a contract is set up which is within the statute of frauds; that in an action on a spe cial contract there can be no recovery on a quantum meruit. The contract alleged, being void as within the statute of frauds, cannot be ratified by subsequent promises. Under the facts alleged, if the plaintiff was entitled to recover his cause of action accrued when he arrived at the age of 21 years. The sixyears statute applies to this kind of an ac tion, and it began to run when the plaintif arrived at the age of 21 years, in 1886. Each paragraph shows that the plaintiff's cause of action accrued more than six years before the death of defendant's decedent. The complaint should allege that the plaintiff had been emancipated.

But the complaint seeks to recover for services in a quantum meruit. Although an aetion for damages for breach of the contract set out in the complaint would not lie as be ing within the statute of frauds, the remedy in an action on the quantum meruit will lie.

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