Illinois Surety Co. v. State ex rel. A. & C. Stone & Lime Co.

122 N.E. 30, 69 Ind. App. 450, 1919 Ind. App. LEXIS 117

• Court: Indiana Court of Appeals
• Decided: February 2, 1919
• Docket: No. 9,573
• Status: Published

Opinion

Dausman, C. J.

Under the first assignment, appellant make's the following contentions:

(1) That the evidence wholly fails to show that the contract for the stone, which was signed “G. B. Lynch & Sons,” was in reality the contract of George B. Lynch individually.

As to this point, the trial court evidently regarded substance rather than shadow; and the evidence tends fairly to sustain the averment of the complaint.

(2) That the evidence wholly fails to show that the stone was sold for, and used in, the construction of the Johns and Pendry roads.

1. In that statement appellant is in error. The contract between the relator and Lynch provides that the stone should be shipped to Colfax for use in the Johns and Pendry roads. It was. shipped to that point. If it was not used in said roads, Lynch was in a position to have shown that fact; for, if a fact, it was peculiarly within his knowledge. He testified at the trial, but did not contend that any part of the relator’s claim was for stone not used in said roads. Neither did appellant furnish any evidence to that effect. Prom the testimony of Mr. Lynch alone, the trial court would have been justified in finding that the balance due on relator’s account is for stone used in said roads. The testimonies of Mr. Myers and Mr. Taylor are to the same effect.- Indeed this feature seems not to have been contested at the trial. Fry v. P. Bannon Sewer Pipe Co. (1913), 179 Ind. 309, 110 N. E. 10.

(3) That the relator having failed to file its claim with the board of commissioners of Clinton county ■within thirty days after furnishing the stone, there can be no recovery on the bond.

Appellant rests this contention on the act of March 4, 1911, §§5901a, 5901b Burns 1914, Acts 1911 p. 437.

2. The contract for the construction of the two roads contains the provision directed by the latter section of said act. By virtue of said act and contract, the relator might have secured its claim by filing it with the board of commissioners, in accordance with the statute. But that procedure is not exclusive, and the failure to adopt that method certainly did not preclude the relator from obtaining judgment against Lynch. But appellant insists that, because of that failure, there can be no recovery against the surety in the bond. There is nothing in the statute, nor in the contract for the performance of which the bond was given, which made it obligatory on the relator' to file its claim with the board of commissioners, either for its own benefit, or for the protection of the surety in the bond. Since the procedure provided by the statute is a mere privilege, of which the relator might have availed itself at its option, appellant cannot escape liability merely because the relator did not intercept the contractor’s pay and apply it on the claim.

Under the second assignment, appellant contends that, on March 4, 1913, “Lynch & Sons” remitted to the relator by draft $450, which relator applied on its account for stone furnished George B. Lynch for another road which he was constructing, known as the Cherry Grove road; that on May 6,1913, “Lynch & Sons” remitted by check $600, of which $194.12 was applied in payment of the balance due on the Cherry Grove road, and $405.88 on the account for stone used in the Johns road; and that appellant is entitled to have the full amount of these remittances applied on the account which is the basis of this action. In support of this contention, two reasons are given: (1) That the remittances were made by “Lynch & Sons,” and therefore should have been applied on the account of “Lynch & Sons”; and (2) that the remittances represented money received by Lynch from Clinton county on his contract for the construction of the Johns and Pendry roads, and therefore should have been applied in payment for tbe stone used in said roads.

3. It would bave been proper to have presented this feature under tbe first assignment. Tbe matter was contested at tbe trial under appellant’s plea of payment, and we assume that it was urged in tbe trial court on tbe motion for a new trial under tbe specification that tbe amount of tbe recovery is too large. Tbe motion to modify tbe judgment was filed at a term subsequent to tbe rendition thereof, and sought to mate a material change therein. For these reasons alone, it was properly overruled. Pursley v. Wickle (1891), 4 Ind. App. 382, 30 N. E. 1115; Johnson v. Foreman (1900), 24 Ind. App. 93, 56 N. E. 254; Warrick v. Spry (1912), 49 Ind. App. 327, 97 N. E. 361. However, there is an abundance of evidence to sustain tbe amount stated in tbe finding, and, of course, tbe judgment must follow tbe finding.

Judgment affirmed.