Anthony v. Cooley

61 Ind. 323

• Court: Indiana Supreme Court
• Decided: May 15, 1878
• Status: Published

Opinion

Perkins, J.

The Town of Hartford City in Blackford county, Indiana, it is alleged, made a contract with appellee, Cooley, to improve a street in said town, along the line and in front of the property of certain citizens and owners, etc.

This suit is against one of said owners, for work done under that contract.

As the suit was against the defendant for work done, not under a contract made by him, but by a third party, it was necessary to the liability of the defendant for work so done, that it should be shown by averments in the complaint, and evidence on the trial, that such third party had power to make the contract, and legally exercised it.

Neither the averments in the complaint nor the evidence on the trial showed such facts.

These points are properly made.

This cause is decided by the decision in the case Moore v. Cline, ante, p. 113.

The cases present the same questions.

The judgment is reversed, with costs, and remanded to he entered as of the date of May 26th, 1876, appellant having died since submission.