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complaint is quite long, and it is not neces-, while in the Bluffton Case the materials in sary to set it out for the purposes of this decision. The case was submitted to the court for trial, and there was a finding and judgment in favor of the appellees, and that appellant take nothing by its complaint.

The error assigned and relied on for reversal is that the court erred in overruling the motion for a new trial. This motion is based on two grounds, namely, that the decision is not sustained by sufficient evidence, and that the decision is contrary to law.

It appears by the evidence that on August 2, 1917, the town board of appellee town passed a declaratory resolution No. 1 for the construction of a sidewalk in said town. At the same time the said board passed declaratory resolutions Nos. 2 and 3, for the construction of two other pieces of sidewalk connecting with and extending on beyond the work involved in the first declaratory resolution, the last two being like the first except as to the description. In due course of procedure, and after the landowners whose lands abutted on the proposed improvement had been notified to construct as provided in section 1 of the Acts of 1913, p. 749, being section 9005c, Burns R. S. 1914, and after they had failed so to construct, on July | 15, 1918, appellee town entered into the contract involved, with appellee Crowell for the construction of the sidewalks described in the declaratory resolutions aforesaid.

the various kinds of improvements were entirely different, requiring different specifica tions. The case at bar, like the Connersville Case, makes no substantial variation in the kind of material to be used for the sidewalk. In either event a cement sidewalk was to be constructed, the choice being between a crushed stone or a gravel filler; both materials being unpatented and in common use. See, also, Martindale v. Incorporated Town of Rochester, 171 Ind. 250, 86 N. E. 321.

[2] The declaratory resolution provided that "the surface of said walk shall be laid according to the grade heretofore established by the board of trustees of said town," but appellant says that no grade had been previously established. The resolution provides for construction "according to the plans and specifications for said walk, now on file with the clerk, in the clerk's office in the town of Schneider, Indiana; that the surface shall be laid according to the grade heretofore established by the board of trustees." The notice for bids states that at the time of adopting the declaratory resolution the board "immediately adopted and required to be placed on file in the office of the town clerk of said town detailed plans and specifications of said sidewalk." Witness L. J. Little, the engineer who drew the profile, says that he had it ready for them when they said they wanted it in their August meeting in 1917; that he had three sets of specifications ready for them, which he delivered to the town clerk at or before the August meeting. This was certainly some evidence of the proper adoption of the plans and specifications, which was all the statute required. Witness Little further testified that from the profile he would be able to determine various cuts and fills, at the various places, and the grade line of the proposed sidewalk, and the relative proportion of the sidewalk to each lot. We find no uncertainty of which appellant may complain, or that would render the proceedings void.

[1] Appellant complains that the resolutions were void for uncertainty, in that they required the sidewalk to be laid on a suitable foundation of "cinders, sand or other equivalent material," and that it be made of crushed stone or gravel. There is no uncertainty here of which appellant may complain. Had it chosen to construct the part of the improvement in front of its property, as it had a right and opportunity to do, it had its option to use, as a foundation or base, and in making the sidewalk, any of the materials specified, all of which are in common use and unpatented, and because of the choice of material which it might have used, such an option, because of convenience, might have been much to its advantage. As to [3] There is no merit to the objection to the bidders, there was no uncertainty. All bidders were on an equality, and if one material was more easily obtainable than the others, it was necessarily so to all bidders, and the property owners had the benefit of it in the unrestrained competition in bidding. It clearly appears that the contract was let to the lowest bidder, and there is no charge in the complaint, or no proof of any fraud in the transaction. A similar question was decided against appellant's contention in City of Connersville v. Merrill, 14 Ind. App. 303, 42 N. E. 1112. The case cited is distinguished from City of Bluffton v. Miller, 33 Ind. App. 521, 70 N. E. 989, in that the general character of the walk was to be of stone,

the contract that it included the three jobs in one contract. If the trustees, in their discretion, determined that the work could be done to the best advantage and for the least cost, under one contract, it was proper for them to act accordingly. Martindale v. Town of Rochester, supra; Boyd v. Murphy, 127 Ind. 174, 25 N. E. 702.

[4] Appellant says that the contract is void for the reason that it is contrary to public policy in this, that the contractor is to establish grades and make cuts according to and under the direction of the engineer in charge, citing as authority City of Bluffton v. Miller, supra. In that case it was held that a contract for a street improvement,

(128 N.E.)

which left the character of the improvement | sufficient only to cover the cost of the sideand the nature of some of the materials to walk in front of that lot, in order to deterbe used to the determination of the engineer, mine such cost, it was necessary to determine was invalid. The court, quoting from Smith in advance, in the plans and specifications, v. Duncan, 77 Ind. 92, held thatthe area of the walk, and the number of cubic yards of cuts or fills, or of both, as

"The law does not contemplate the delega- the case might be, that would be required

tion of such powers to that officer."

in constructing in front of each lot. The en

We fully agree with the principle an-gineer testified, in substance, that these items nounced, but in this case, the same provision of the contract from which appellant takes its statement of the powers of the engineer above mentioned says further on that

"Said engineer shall have full supervision over the entire work and the direction of the same according to the plans, profile and speci

fications herein referred to."

By this, it is clear that there was no dele gation of discretionary powers, and that the engineer's supervision and decisions must be in accordance with the plans, profile, and specifications which had theretofore been adopted. His duties were wholly ministerial, as his acts were wholly controlled by the plans, profile, and specifications. The question has been determined against appellant in Martindale v. Incorporated Town of Rochester, supra. It is expressly provided in section 21 of the specifications that

"In the interpretation of the specifications the decision of the board of trustees of Schneider, Indiana, shall be final."

[5] It is next contended by appellant that as the statute under which the sidewalks were ordered as originally enacted contemplated the foreclosure of a lien by the contractor on each separate lot for an amount

could be determined from the profile; but whether they could or not does not need our consideration, for the foreclosure method of procedure referred to by appellant as provided in section 9005e, Burns 1914, was repealed by Acts 1917, c. 173, p. 683, and a method of procedure adopted in accord with the act concerning municipal corporations, approved March 6, 1905 (Laws 1905, c. 129), and the acts amendatory thereof. It is presumed that the board of trustees had before it the act of 1917, and it appears that so far it has acted in harmony therewith. We do not need to discuss in this case a condition arising in the event that' certain property owners, having walks to build where there would be comparatively no cuts or fills required, had put in their walks, while those having deep cuts or heavy fills to make failed to construct, for none of the property owners constructed and the whole continuous sidewalk, without a break by reason of any one of the property owners having constructed, was to be constructed under the contract as provided in the act of 1905, supra, and the acts amendatory thereof.

The evidence was sufficient to sustain the decision of the court, and it was not contrary to law.

Judgment affirmed.

(74 Ind. App. 50)

excluded all other draught beer for the said MARKS et al. v. CONRAD SEIPP BREW- period of five years, and used no draught

ING CO. (No. 10509.)

(Appellate Court of Indiana, Division No. 2. Oct. 29, 1920.)

1. Intoxicating liquors 58-One accepting loan from brewery, agreeing to use product exclusively, could not obtain license.

Under Burns' Ann. St. 1914, § 8323f, one under dependent influence of a brewery by accepting loan from it under agreement to use its product exclusively could not obtain license to sell intoxicating liquors, for he could not so qualify himself except by committing perjury in his sworn application.

2. Intoxicating liquors 327(1)-No relief to parties to notes involving illegal agreement to sell product of payee's brewery exclusively. In an action by a brewery against a saloon keeper on notes given pursuant to agreement that the saloon keeper should use as draft beer only the product of the brewery, the transaction being illegal under Burns' Ann. St. 1914, § 8323f, where it affirmatively appeared by the saloon keeper's answer, whether drawn on the theory of accord and satisfaction or of illegal consideration, that the transaction was against public policy and illegal, the trial court should have refused further to hear the case.

beer except that purchased from appellee, and that because of the fulfillment on his own part, of said agreement the note is fully paid and satisfied and is void.

Appellant Clara Marks answered in two paragraphs, the first a denial, and the second averring that at the time she executed the note sued upon she was the wife of appellant Louis, and executed the note as his surety.

The case was put at issue by appellee's reply in denial to each of the special paragraphs of answer, and submitted to a jury for trial, which returned a verdict for ap

pellee in the sum of $1,504 principal, intion for a new trial was overruled, and this terest and attorneys fees. Appellant's mo ruling of the court is the only error assigned.

It is expressly stated by appellants that this case is to be decided upon one question only, and that is whether or not the transaction involved was illegal; and, if it is illegal, appellants contend that the court should refuse any relief to appellee.

there was a mortgage on the property purIt appears by the undisputed evidence that chased by appellant for saloon purposes Appeal from Superior Court, Lake County; chase, being the same time as the execution amounting to $625, at the time of the purCharles E. Greenwald, Judge.

of the note in suit. Appellee's agent testiCom-fied that he was present when the note was given. The papers were sent to him from Chicago, the release of the mortgage, a check for $375, and the note to be signed by appel

Action by the Conrad Seipp Brewing pany against Louis Marks and Clara Marks. From judgment for plaintiff, defendants appeal. Reversed, with instructions.

George P. Rose, of Gary, for appellants.lant and wife, and upon them signing it he Davis & Starr, of Gary, for appellee.

NICHOLS, J. This action was by appellee against appellants to recover upon a promissory note executed by appellants to appellee, dated April 25, 1912, the action being commenced July 11, 1917.

To the complaint, Louis Marks, appellant, filed two paragraphs of answer, the first a denial, and the second averring that on or about the 25th day of April, 1912, appellee sought to induce appellant Louis Marks to handle and retail in his saloon in Gary, Ind., the beer manufactured by appellee, and in pursuance of said inducement appellee offered to loan him $1,000 with the understanding and agreement that he was to handle and use as draught beer the product of appellee, and that if he should use and retail the appellee's beer in his saloon in Gary, Ind., and should continue to retail same and purchase same from appellee for a period of five years, then the note given and sued upon in this cause should become null and void, and noncollectible. In pursuance to said agreement, he complied fully with the same, and used said beer on draught in said saloon, and used a very great amount of same, and

was to release the mortgage, and turn over the check for $375, both of which duties he performed. Appellant turned the check over to Kunert as the balance of the purchase price of the real estate. It was from Kunert that appellant at the time purchased the saloon, and the license under which it was being operated, and which was transferred to appellant. It thus appears that appellee had full knowledge of the whole transaction.

Section 8323f, Burns' R. S. 1914, in force at the time of this transaction, provides, inter alia, that all persons applying for license to sell intoxicating liquors, or for the renewal of such license, shall file a written application, in which it is stated that the applicant is the actual and sole owner of such business; that no other firm, person, or corporation has any interest, directly or indirectly, therein; and that the applicant had not directly or indirectly solicited, received, or accepted, and during the continuation of the license applied for, or any renewal thereof, will not directly or indirectly solicit, receive, or accept, from any person, firm, or corporation engaged in the manufacture or sale of intoxicating liquors, any gift, loan

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(128 N.E.)

of money, furniture, fixtures, or other as- In the case of Dunn v. Stegemann, 10 Cal. sistance of any kind. The section required App. 38, 101 Pac. 25, the court held that when that such application should be subscribed the illegality of the contract appears, the and sworn to by the applicant. court should sua sponte deny relief to either party.

Section 8323m, Burns' R. S. 1914, requires that one purchasing a license shall file with the board of commissioners a written application for leave to purchase such license at the time and in the manner required of applicants for license to sell intoxicating liq

uors.

[1] It is a matter of history that a part of the corrupting influence of saloons emanated from the fact that many of them were owned or controlled by the breweries, by whom they were placed in the hands of irresponsible persons who were dependent upon the breweries for their financial support. Public policy demanded that such a condition of dependence and irresponsible operation be abrogated, and the act above mentioned resulted. Under it one under the dependent influence of the brewery, as in this case, by accepting a loan from it under an agreement to use its product exclusively, could not obtain a license to sell intoxicating liquors, for he could not, by his application, qualify himself as a fit and proper person to have such license, unless by his sworn application he committed perjury.

Appellee contends that the answer mentioned is not an answer of illegal consideration, but one of accord and satisfaction, or of payment, and, upon the proposition that illegal consideration is an affirmative defense, and that it must be specially pleaded, cites Casad et al. v. Holdridge, 50 Ind. 529; Fisher v. Fisher, 113 Ind. 474, 15 N. E. 832; Kain v. Rinker, 1 Ind. App. 86, 27 N. E. 328; Bowser v. Spiesshofer, 4 Ind. App. 348, 30 N. E. 942.

[2] Granting that the law is correctly stated in each of these cases, we do not need to run counter thereto in deciding this case. By the answer under consideration, whether it be held as an answer drawn on the theory of accord and satisfaction, or of illegal consideration, it affirmatively appears, by averment, which is sustained by uncontradicted evidence, unobjected to, that the transaction was one against public policy, and illegal under the statute. The illegality was therefore directly called to the attention of the trial court, both by the pleading and by the evidence, and it should then have refused further to hear the case. The courts generally have spoken in no uncertain language on this question.

In the case of Bromley v. Washington Life Ins. Co., 28 Ky. Law Rep. 1300, 92 S. W. 17, 5 L. R. A. (N. S.) 747, the court says:

"The defense need not be pleaded. If at any time it appears in the process of the action that the contract sued upon is one which the law forbids, the court will refuse relief."

In Sharpe v. Teese, 9 N. J. Law, 352, 17 Am. Dec. 479, the court says:

"The attempt to contravene the policy of a public statute is illegal. Nor is it necessary to render it so that the statute should contain an express prohibition of such attempt. It always contains an implied prohibition; and to such attempt the principles of the common law are invariably and deadly hostile, not always by an interference between the parties themselves, or by enabling the one to recall from the other, where in pari delicto, what may have been obtained, but by at all times refusing the aid of the law to carry into effect or to enforce any contract which may be the result of such intended contravention."

In the case of Cummins v. Pence, 174 Ind. 115, 91 N. E. 529, it is held that a thing within the intent of an act is made as much a part of it as if written therein.

In Claflin v. U. S. Credit System Co., 165 Mass. 501, 43 N. E. 293, 52 Am. St. Rep. 528, the court says:

in defense, nor was it noticed in the superior "The illegality of the contract is not set up court, where the plaintiff had a verdict. But no court will consciously lend its aid for the enforcement of an illegal contract."

In the case of Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539, the court, speaking of a recovery on an illegal contract, says:

"The objection to a recovery could not be obviated or waived by any system of pleading, or even by the express stipulation of the parties. It was one which the court itself was bound to raise in the due interest of the due administration of justice. The court will not listen to claims founded upon services rendered in violation of common decency, public morality, or the law."

This case is cited with approval in Mount v. Board, 168 Ind. 661, 80 N. E. 269, 10 L. R. A. (N. S.) 483. Other cases to like effect are: Robertson v. Ryan, 83 Ala. 290, 3 South. 674; McNulta v. Corn Belt Bank, 164 Ill. 427, 45 N. E. 954, 56 Am. St. Rep. 203; Roselle v. Farmers' Bank of Norborne, 141 Mo. 36, 39 S. W. 274, 64 Am. St. Rep.

501; Wright v. Ringskopf, 43 Wis. 344; Bank of United States v. Owens, 2 Pet. (U. S.) 527, 7 L. Ed. 508; Richardson v. Buhl, 77 Mich. 632, 43 N. W. 1102, 6 L. R. A. 457.

To the effect that contract in contravention of good morals, public policy, or the law are void in Indiana, see Root v. Stevenson, 24 Ind. 115; Whitesides v. Hunt, 97 Ind. 203, 49 Am. Rep. 441; Hutchins v. Weldin, 114 Ind. 80, 15 N. E. 804; Brown v. First National Bank, 137 Ind. 655, 37 N. E. 158, 24 L. R. A. 206; Naglebaugh v. Harder, 21 Ind. App. 551, 51 N. E. 427; Terre Haute

Brewing Co. v. Hartman, 19 Ind. App. 596, 49 N. E. 864; Deming v. State ex rel., 23 Ind 416; Overshiner v. Wisehart, 59 Ind. 135. In the last case cited, the court, speaking of an illegal transaction, says:

"The court should have dismissed the case, even though the defendant did not claim any relief from the fraud; not because he is more favored than the plaintiff, but because both are equally culpable."

The judgment is reversed, with instructions to the trial court to dismiss the case.

(74 Ind. App. 31)

SOUTHERN SURETY CO. v. STATE ex rel.
SPRAGGINS et al. (No. 10508.)

NICHOLS, J. This is an action by the state of Indiana, on relation of John Earl Spraggins, the ward, against the relator's guardian, Cicero Fettinger, and the sureties upon his several bonds, for a breach of trust-the conversion of the funds to his own use.

[1] Appellant has correctly stated that there is no controversy between appellant and appellee relative to the facts proven in this case, and there is no sharp conflict in any of the evidence, and, under the pleadings and evidence adduced, it becomes the duty of this court to acquaint itself with the facts and apply the law thereto, and, if the facts and law will justify, affirm the decision of the lower court; if not, reverse it. The facts, briefly stated, are as follows: In August, 1913, the appellee Fettinger

(Appellate Court of Indiana, Division No. 2. was by the judge of the Pike circuit court

Oct. 28, 1920.)

1. Appeal and error 987(1)—Duty of reviewing court where there is no controversy as to facts.

Where there is no controversy relative to facts proven, and no sharp conflict in any of the evidence, it becomes the duty of the appellate court, under the pleadings and evidence adduced, to acquaint itself with the facts and apply the law thereto, and, if the facts and law will justify, affirm the decision of the lower court; if not, reverse it.

appointed guardian of the person and property of John Earl Spraggins, a minor, who had no personal property, and the only real estate he owned was the real estate the proceeds of the sale of which by the guardian are involved in this action. At the time of appointment of said guardian he filed a bond, duly executed by himself and the appellees McGlasson and Heacock, in the sum of $100.

On the 2d of September, 1913, said guardian procured an order of the Pike cir

2. Judgment 313-Motion to modify judg-cuit court to sell said real estate, and as ment properly overruled where it sought entirely different judgment.

A motion to modify a judgment was properly overruled, where it did not seek a correction of an erroneous entry of what the court had in fact adjudged, but rather another and entirely different judgment.

3. Guardian and ward

177-Filing of new bond does not release sureties on original bond.

The filing of a new or additional bond by a guardian does not release the sureties on the original bond, where no application for release has been made, the new bond becoming cumulative in its legal character, and the sureties must be deemed cosureties, bound as such to the ward in the proportion of the amounts of their bonds.

a condition precedent to the sale of the same complied with the requirements of the statutes and filed his additional bond, with the appellees Everett L. Ashby and Frank A. Parker as sureties thereon, in the penal sum of $600. There was no application thereafter to be released from this bond.

On the 3d day of November, 1913, said guardian sold said real estate for the sum of $475, and received the cash therefor, and on the 10th day of November, 1913, said guardian reported said sale to the Pike circuit court, with the money received therefor, which said report of sale was received and approved by the court, and the doings of said guardian in the matter of said sale were by the court in all things approved

Appeal from Circuit Court, Pike County; and confirmed. Bomar Traylar, Judge.

Action by the State of Indiana, on the relation of John Earl Spraggins, a ward, against the relator's guardian, Cicero Fettinger, the Southern Surety Company, and others. From an adverse judgment, the Surety Company appeals. Reversed, with instructions to grant new trial.

On the 12th day of November, 1913, two days after said sale had been by the guardfiled a new bond, in the penal sum of $1,ian reported to the court, said guardian 000, with the appellant as sole and only surety thereon, which said bond was by the court received and approved. Said bond was conditioned for the faithful performance of the duties of his trust. At the time William D. Curll, of Petersburg, for ap- said bond was executed all of the money pellant. received by the guardian was in his hands John L. Sumner, of Petersburg, for appel- as such guardian, and had not been by him lees. converted or misappropriated.

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