Board, etc. v. Chastain-184 Ind. 441.

pellee, who by the terms of his contract was required to complete the road on or before December 24, 1912. That in the following August, appellant notified appellee to appear before said body and be heard as to whether the road was completed, and if not completed then to determine the advisability of reletting the same; all of which was in the line of the duty imposed upon appellant under the statute. Appellee appeared before the board, and it was found and entered of record that the work was not completed according to the contract, and ordered that the improvement be readvertised and relet. From this order appellee appealed to the circuit court, where he interposed a motion to dismiss the proceedings, which motion is as follows: "1. This cause of action originated before the board of commissioners of Orange County, Indiana, and came before the said board of commissioners for hearing and was passed upon by the said board of commissioners in a judicial capacity, and finding and judgment was rendered by them in favor of themselves as commissioners of said county and against the defendant. 2. That said cause of action is an adversary proceeding and was begun by the board of commissioners of Orange County, State of Indiana, as plaintiff against Jacob R. Chastain as defendant, before the board of commissioners of Orange County, State of Indiana, as a court or judicial tribunal. Wherefore defendant prays that said cause be dismissed." This motion was sustained by the court and the cause was dismissed with judgment against appellant for cost.

Section 7733 Burns 1914, Acts 1905 p. 521, §79, vests the board of commissioners with full power to determine the question of whether a contract for the building of gravel road has been completed according to contract, subject to appeal to the

Board, etc. v. Chastain-184 Ind. 441.

circuit court, where the question shall be tried 1. de novo. This section also makes it the duty of

the engineer in charge of the work, to certify the completion of the improvement when the same has been accomplished and provides that interested parties may appear and remonstrate against the acceptance of such work. A trial is provided for in said statute and a provision that either party may appeal to the circuit court of the county where the question shall be tried de novo. The engineer in

charge of this work failed and refused to 2. certify its completion, and appellee in March,

1913, filed a petition claiming that the same was completed. This proceeding was authorized under the holdings in Board, etc. v. Branaman (1907), 169 Ind. 80, 92, 82 N. E. 65. Remonstrances were filed by interested taxpayers to this petition, whereupon appellee dismissed his petition. Then follows the proceeding above mentioned.

It is insisted by appellee that appellant had no authority to call him before it on its own motion and that in doing so it was instituting an adverse pro

1.

ceeding, to which the board of commissioners

was plaintiff, before its own tribunal, as set out in his motion to dismiss. The legislature has vested in the boards of commissioners of the several counties of the State the power to build gravel roads. It is their duty to see that the work is done with proper dispatch and according to the contract, and even if the engineer fails to certify its completion or the contractor fails to complete the work according to plans and specifications, or within the time, a board would be remiss in its duty if it took no steps towards the completion of the work according to the contract. The board of commissioners is given full power in these matters and if the engineer fails to certify the work as completed

Board, etc. v. Chastain-184 Ind. 441.

the board has the power to institute such proceedings as will give it the information desired.

Appellee had been before appellant and notified it that the work was completed according to contract. In fact he had presented a sworn statement that it had been so completed. He dismissed this statement, however, but still claimed that it was built according to contract. Appellee was notified to appear before the board and was there given an opportunity to be heard as to whether said improvement was completed according to contract, and being dissatisfied with the board's finding appealed to the circuit court.

There is no other tribunal vested with original jurisdiction to determine when the contractor has discharged the obligation of his contract and it was not such an adverse proceeding as that the board of commissioners had no authority to act. The proceedings were such as the statute authorizes and the appeal to the circuit court was in conformity with the law, and it was the duty of the court to try the case de novo, and hence it erred in dismissing the cause. The judgment of the court is reversed with instructions to the court below to overrule appellee's motion to dismiss the cause and to further proceed in accordance with this opinion.

NOTE.-Reported in 111 N. E. 630. As to right of contractor to file petition claiming completion of work and asking payment on failure of architect or engineer to certify to completion, see Ann. Cas. 1913 A 180. See, also, under (1, 2) 37 Cyc 235.

Fishbein v. Pennsylvania Glass Co.-184 Ind. 445.

DORRELL ET AL. v. HERR ET AL.

[No. 22,883. Filed February 23, 1916.]

APPEAL.-Review.-Evidence.-Motion for New Trial.-Where there is some evidence to sustain the findings of the trial court, a specification in the motion for new trial challenging the sufficiency of the evidence is not well taken.

From Johnson Circuit Court; Charles F. Remy, Special Judge.

Action between Samuel Dorrell and another, and Elizabeth Herr and another. From the judgment rendered, the former appeal. Affirmed.

L. E. Ritchey, G. D. Dean and S. Mahlon Unger, for appellants.

Robert M. Miller, Henry C. Barnett and Oral S. Barnett, for appellees.

LAIRY, J.-The only error assigned in this case which is stated as being relied on by appellants in their brief, is the action of the trial court in overruling their motion for a new trial. The only statutory grounds alleged in this motion relate to the sufficiency of the evidence to sustain the findings of the court. As there was some evidence to sustain these findings on every material issue the position of appellants is not well taken. Judgment affirmed.

NOTE.-Reported in 111 N. E. 614. See, also 4 C. J. 877; 3 Cyo

360.

FISHBEIN V. THE PENNSYLVANIA GLASS COMPANY. [No. 22,930. Filed February 23, 1916.]

APPEAL.—Review.—Evidence.—Findings.—In determining if there is evidence to support a finding of the trial court, the court on appeal will consider only the evidence, direct and circumstantial, most favorable to appellee, and a finding warranted by the evidence thus considered is conclusive.

From Superior Court of Marion County (89,347); Joseph Collier, Judge.

Fishbein v. Pennsylvania Glass Co.-184 Ind. 446.

Action by The Pennsylvania Glass Company against Benjamin Fishbein.

From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.) Affirmed.

Earl R. Conder, William A. Pickens and Linton A. Cox, for appellant.

Thomas D. McGee and Edward D. Reardon, for appellee.

MORRIS, C. J.-Suit on account by appellee, against appellant, for merchandise sold and delivered. Appellee is a corporation doing business at Anderson. Appellant is engaged in mercantile business in Indianapolis. On August 3, 1912, appellee sold appellant a lot of glass caps, wires and rubbers for cans and bottles. On August 10, 1912, it sold to appellant another lot of goods of the same character. The total price of the goods sold was $180. The rubbers were designed to make the caps fit the jars "air tight," and without them the caps were useless. Appellee did not have the rubbers in stock and ordered them shipped direct to appellant from Boston. The caps and wires were shipped from Anderson. Appellee mailed invoices to appellant on August 3 and 10, 1912. The cause was tried in May, 1913, by the court.

It is contended by appellant that there was no evidence to sustain the finding that appellee delivered the rubbers purchased. We must hold otherwise. On such contention we can only regard the evidence, direct and circumstantial, most favorable to appellee. Peabody-Alwert Coal Co. v. Yandell (1913), 179 Ind. 222, 100 N. E. 758. We have considered the evidence on the question presented, but deem it unnecessary to set it out in this opinion. Such consideration impels the conclusion that the