Lennox & Matthews & Associates, Inc. v. Rozzelle

108 N.E.2d 621, 231 Ind. 343, 1952 Ind. LEXIS 155

• Court: Indiana Supreme Court
• Decided: November 19, 1952
• Docket: 28,991
• Status: Published

Opinions

Draper, J.

The appellee brought this action against the appellant to recover for services rendered, which services consisted of the making and furnishing of certain daily reports to the appellant.

The second paragraph of complaint, upon which the judgment appealed from was rendered, pleads an implied promise to pay the reasonable value of the services rendered. The first of the two questions raised challenges the sufficiency of the evidence to sustain the decision.

The appellant was employed by the State of Indiana as the architect and engineer in charge of the construction of the State Board of Health building, in the city of Indianapolis. The appellee was employed by the State as clerk of the works, on the same building. His duty as clerk of the works, as disclosed by the record, was to keep a record and check of all the contractors who brought materials onto the property for the State, and to check the progress of the work. The evidence does not disclose the identity of the contractor or contractors. There is no evidence that either party to this record had any direct or indirect interest in the project, or in the contract for the construction thereof, except as above mentioned. Nor does it appear from the record before us, by which we are bound, that the performance of these services by the appellee for the appellant was or could be in any way inconsistent with the duty of either of them to the State, or that it did have or could have any tendency to be injurious to the public good. Compare Cheney v. Unroe (1906), 166 Ind. 550, 77 N. E. 1041.

Before the appellee was employed as clerk of the works, he talked with Mr. Matthews, a member of appellant’s firm, and one of those in charge of the actual work, concerning the making of these reports. He did this at the direction of the then Director of Procurement and Supply for the State of Indiana. His services had to be approved by the architects, and the director requested that he talk to Mr. Matthews and Mr. Lennox and make the necessary arrangements.

In these conversations with appellant the matter of these reports was discussed. It is undenied that 679 of these reports were thereafter made by the appellee and accepted by the appellant over a period of 22 months, and that they were of the reasonable value of five dollars each.

The appellee’s version of the conversations between him and the appellant could leave no doubt in the mind of any reasonable man that the services were requested by the appellant and that they were not to be gratuitously rendered, but on the contrary the appellant expected to pay for them and the appellee expected to be paid. Under such circumstances the law will imply a promise to pay the reasonable value thereof. The Louisville, New Albany and Chicago Railway Co. v. Hubbard (1888), 116 Ind. 193, 18 N. E. 611.

The fact that the appellee made no demand for payment until after the reports had been furnished is a circumstance to be considered in determining whether the services were intended to be gratuitous even though they were requested by the person sued. See Western Oil Refining Co. v. Underwood (1925), 83 Ind. App. 488, 149 N. E. 85. But it is not necessarily decisive. The question is, after all, one to be resolved by the trial court from all the evidence adduced on the subject.

An architect who was called by the appellant was asked whether it was' proper procedure for the clerk of the works to furnish a report of the daily progress of construction to the architects employed to supervise the work. The court sustained an objection to the question in that form but indicated the witness would be permitted to answer if he were asked what the duties of a clerk of the works were. The appellant thereupon offered to prove that the witness would testify, if permitted, that it is proper procedure for a clerk of the works to furnish a written report of the daily progress of construction to the architect in charge.

Error or not, we are unable to see how the refusal of the offered proof could have harmed the appellant, since it went no further than to establish the fact that the appellee had not acted improperly in furnishing the reports to appellant. It is elementary that error, unaccompanied by prejudice, is not ground for reversal.

Judgment affirmed.

Jasper, C. J., dissents.