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conditions required of them by the terms of said contract.

[5] A writ of mandamus will lie to compel a board of county commissioners to take action on claims against the county when such Of claims are properly presented to said board. Section 1225, Burns 1908; 26 Cyc. 313; Merrill on Mandamus, § 111; Henderson, Auditor, v. State ex rel., 53 Ind. 60; People v. Supervisors of Delaware County, 45 N. Y. 196.

state facts sufficient to constitute a cause of action against appellant; (2) the trial court erred in overruling appellant's motion to make appellees' complaint more specific; and (3) the court erred in sustaining appellees' motion for judgment on the pleadings. these assignments the first and second may be disposed of by applying the following wellestablished rules as laid down by this court. [3] 1. A complaint sufficient to bar another action for the same cause is good as against an attack made for the first time on appeal. Bedford Belt R. Co. v. Brown, 142 Ind. 659, 42 N. E. 359; Scudder v. Jones, 134 Ind. 547, 32 N. E. 221; Burkhardt v. Gladish, 123 Ind. 337, 24 N. E. 118.

[4] 2. The refusal of a motion to make a pleading more specific is so far within the discretion of the trial court that on appeal a reversal on that ground will not follow unless the rights of the complaining party have suffered. Leimgruber v. Leimgruber, 172 Ind. 370-374, 86 N. E. 73; Phoenix Ins. Co. v. Rowe, 117 Ind. 202-204, 20 N. E. 122.


* * *

[6] But section 5956, Burns 1908, provides that: "In all cases where a claim is filed upon a contract with said commissioners for work to be conducted under the supervision of * * * any architect appointed by said commissioners, said board shall not allow such claim until such * ** architect shall certify in writing upon said claim that the work therein mentioned has been performed according to contract, and that the amount of said claim is due and owing by the terms of said contract." In cases other than those arising under this statute it is the rule that when a board of county commissioners has taken jurisdiction over a claim and has acted upon it, in whole or in part, its jurisdiction therein is ended and the aggrieved party has its choice of two remedies only: (1) An appeal to the circuit court, or (2) an independent action against the county. Western Const. Co. v. Board, etc., 98 N. E. 347, and cases cited.

[7] But in the case at bar the contract specifically provided that partial payments should be made to appellees on claims filed by them from time to time as the work pro

The principal question to be determined by this appeal is, Did the trial court err in sustaining appellees' motion for judgment on the pleadings? Omitting any details not necessary for a determination on this question, it appears from the complaint, in substance, that the relators in this case, hereinafter referred to as appellees, are copartners, doing business as the Reed-Bump Construction Company; that on July 18, 1908, they entered into contract with appellant to build an addition to and reconstruct certain portions of the Lake county jail, the contract price for such work being $45,040; that ap-gressed, while the statute, supra, required pellees entered upon the performance of said contract and did perform all things on their part to be performed thereunder; that during the progress of the work appellant allowed certain payments to appellees in accordance with the terms of said contract; that on June 1, 1910, appellees filed with appellant their final claim and estimate showing a balance due them under said contract in the sum of $6,919; that up to and including March 1, 1911, appellant allowed of this balance the sum of $5,419, leaving a remaining balance of $1,500, which remaining balance appellant "then and there refused, and still refuses, to either allow or disallow," or any part thereof, Then follow allegations showing that the claim is long past due; that a demand has been made; and that the county council of Lake county has duly appropriated funds liable for the payment of said claim and sufficient to pay any and all claims arising out of said contract. The prayer for an alternative writ of mandate is that appellant be ordered "to either allow or disallow these relators' said claim." To this complaint appellant filed a general denial and two paragraphs of affirmative answer in Whether the second and third paragraphs which it is alleged, in substance, that appel- of appellant's answer are sufficient we need

that, as a requisite to any action by appellant on such claims, it must appear that the architects under whose supervision the work was done had certified to the correctness thereof. From the allegations of the complaint it appears that appellant allowed certain parts of appellees' final claim at different meetings of said board, which fact, when considered in connection with the provisions of the contract, leads to the fair and reasonable inference that such final claim was divisible and that action was taken on the several items thereof as they were approved by the architects. Domestic Block Coal Co. v. De Armey, 100 N. E. 675.

Appellees alleged that the claim here in question was properly certified, but this allegation was met both by appellant's general denial and by specific averments contained in the second and third paragraphs of answer. [8] A judgment on the pleadings cannot be entered where there is an issue of fact framed thereby. Weicher v. Cargill, 82 Minn. 265, 84 N. W. 1007; Noland v. Owens, 13 Okl. 408, 74 Pac. 954; Swinehart v. Pocatello, etc., Co., 8 Idaho, 710, 70 Pac. 1054.

It is contended that the rule of construction under our Code is the same as at common law, and, tested by the common-law rule, the complaint here is insufficient.

raised by the general denial, and a judg-rer, the court will consider facts fairly and ment for the plaintiff where there is a gen- reasonably inferable from those expressly eral issue untried is error. Talbott v. Arm- stated. strong, 14 Ind. 254; Custer County v. Western Kanches, Ltd., 97 Fed. 483, 38 C. C. A. 298; Parker v. Des Moines Life Ass'n, 108 Iowa, 117-121, 78 N. W. 826; Fouts v. Pettigrew, 68 Kan. 289, 74 Pac. 1107; Bryant v. Davis, 22 Mont. 534, 57 Pac. 143; Frost v. Hammatt, 28 Mass. (11 Pick.) 70-75.

[9] Appellees assert, however, that an answer which denies "each and every material allegation of the complaint" is insufficient. | While it is better form in pleading to omit from such denial the word "material," yet the answer must be held good.

Judgment reversed, with instructions to the lower court to overrule appellees' motion for judgment on the pleadings and for further proceedings not inconsistent with this opinion.

(179 Ind. 592)

MEY. (No. 22,328.)
(Supreme Court of Indiana. June 3, 1913.)

The rules for the construction of pleadings under the Code are more liberal than those at common law.

[1] It cannot be conceded that our Code rule is no more liberal than that of the common law. The contrary has been declared by this court. Malott v. Sample (1905) 164 Ind. 645, 648, 74 N. E. 245, and cases cited; Indiana, etc., Torpedo Co. v. Lippincott Glass Co., 165 Ind. 361, 363, 75 N. E. 649, and cases cited; Town of New Caselt v. Grubbs, 171 Ind. 482, 86 N. E. 757. The rule of construction under the Code system is stated as follows in 4 Ency. Pl. & Pr. p. 755: "Even on demurrer pleadings are to be liberally construed. The complaint on demurrer must be deemed to allege that which can be implied from the allegations therein by a reasonable and fair intendment. And a reasonable construction will be given, although the facts are imperfectly or informally averred and argumentatively stated, or the pleading lacks definiteness and precision." (Italics ours throughout.)

[2] Were it conceded that the common-law rule governs, it warranted the drawing of fair and reasonable inferences from facts ex[Ed. Note. For other cases, see Pleading, pressly pleaded. "The language of the pleadCent. Dig. §§ 52, 66-74; Dec. Dig. 34. Cent. Dig. §§ 52, 66-74; Dec. Dig. § 34.*ing is to have a reasonable intendment and 2. PLEADING (§ 34*)-CONSTRUCTION AT COM-construction; and, where an expression is ca


Even at common law the rules of construc- pable of different meanings, that shall be tion warranted the drawing of fair and rea- taken which will support the declaration, sonable inferences from facts expressly pleaded. and not the other, which would defeat it." 1 [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 52, 66-74; Dec. Dig. § 34. Chitty, 237; 1 Saunders, Pl. & Ev. 919; Ste3. STATUTES (§ 2254*)-CONSTRUCTION-ADOP-phen on Pl. p. 379; 4 Ency. Pl. & Pr. 759; 31 TION OF STATUTE PREVIOUSLY CONSTRUED.

The re-enactment of Civ. Code 1852 by Acts 1881, c. 38, was not an adoption of a construction that indirect averments in a pleading could not be construed in determining upon demurrer its sufficiency, since such a construction of the Code was not clear and uniform prior to its re-enactment.

[Ed. Note. For other cases. see Statutes, Cent. Dig. § 306; Dec. Dig. § 2254.*] 4. MASTER AND SERVANT (§ 258*)-INJURIES TO SERVANT-PLEADING.

Where the complaint in an action for injuries to a miner caused by a falling piece of slate alleged that the roof of the mine was insecure and in condition to fall at any time, it is a sufficient allegation that the particular piece which fell was insecure, in the absence of a motion to make the complaint more spe


[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*]

Cyc. 78. Appellant's counsel assert that as
against a demurrer for want of facts a para-
graph of complaint cannot be aided by in-
tendments; that a defendant's neglect of du-
ty, etc., must be directly, specifically, and pos-
itively averred, and cannot be shown by "re-
cital, conclusion, or inference." It would ap-
pear to be counsel's position that the correct
rule would prohibit entirely resort to infer-
ence or implication; but in no event could
such resort be justified unless the suggested
inference is one necessarily arising from facts
directly averred. Counsel say: "If, when a
complaint is challenged by demurrer,
the judge may consider facts * *
do not appear except by way of inference,
the judge who rules on the demurrer and the
judge who presides at the trial * * * may
draw reasonable inferences directly opposite,
chaos will be
the inevitable result." A great number of
Indiana cases are cited, the most important
of which will be noted later. In dealing with
treaties, constitutions, statutes, charters, con-
tracts, wills, deeds, and other written instru-
ments there is and ever has been since the
beginning of civil government, resort to in-

On rehearing. Petition for rehearing over- and confusion and ruled.

For former opinion, see 100 N. E. 675.

MORRIS, J. Counsel for appellant have filed a brief of great length, vigorously assailing the declared rule that, in determining the sufficiency of a complaint on demur



ference or implication. The limitations of the human mind and the imperfections of human language are such that resort to implication is a fundamental necessity in the ordinary affairs of life.

together with all the reasonable inferences which might be deduced from such facts." The opinion was written by Jordan, J., who delivered the opinion in Wabash R. Co. v. Beedle, supra. In Town of New Castle v. Grubbs, 171 Ind. 482, 86 N. E. 757, it was said: "The pleading is to be read in the light of all such ultimate facts as must necessarily be intended from the facts which are well pleaded. A complaint ought to be fairly construed, and it is often the fact that matters of substance are shown by the very narrative of the manner in which an occurrence took place." In support of the ruling the court cites section 385, Burns 1908, which provides that in construing a pleading "its allegations shall be liberally construed, with a view to substantial justice between the parties." 4 Ency. Pl. & Pr. 745, also cited in support of the ruling, declares: "Every reasonable intendment will be made in favor of the pleading, and this even though implications are resorted to, since what is necessarily understood or implied in a pleading forms a part of it as much as if it was expressed."

In his treatise on the federal Constitution, Story, in speaking of a supposed attempt by the framers of the instrument to positively enumerate the powers desired to be granted to Congress, says: "It must have embraced all future as well as all present exigencies, and been accommodated to all times, and all occasions, and all changes of natural situation and character. * * * Who does not at once perceive that such a course is utterly beyond human reach and foresight? It demands a wisdom never yet given to man; and a knowledge of the future which belongs only to Him whose providence directs and governs all." Story on the Constitution, § 1239. The same author in section 433 asserts that the faculties of man are not competent to frame a system of government which would "leave nothing to implication," and that a detailed list of all the necessary powers of a government, and the means of executing the same, could not be comprehended by the human mind. The same learned jurist in section 1244 says: "Such is the character of human language that no word conveys to the mind in all situations one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended." To wholly prohibit resort to inference in determining the sufficiency of a pleading would at once result in the destruction of the system, and notwithstanding some expressions to be found in certain opinions of judg-clusion that this court never intended to es, where words were used in a sense obviously not intended, it may be safely asserted that no court ever deliberately held, or intended to hold, that inferred facts may never be considered in determining on demurrer the sufficiency of a pleading.

In cases cited by appellant may be noted the following expressions: "It is an elementary principle that in pleadings facts must be positively averred, and not set out by way of recital, inference, or conclusion." Wabash R. Co. v. Hassett, 170 Ind. 370, 83 N. E. 705: "It has been repeatedly affirmed by this court that facts in a pleading must be positively averred, and not set out by way of recital, inference, or conclusion." Wabash R. Co. v. Beedle, 173 Ind. 437, 90 N. E. 760: "But in determining the sufficiency of pleadings only inferences necessarily arising from facts alleged will be indulged." Rowan v. Butler, 171 Ind. 28, 85 N. E. 714. Appellee cites the opinion in Antioch Coal Co. v. Rockey, 169 Ind. 247, 82 N. E. 76, which contains the following expression: "Appellant by his demurrer to the complaint conceded as true

A consideration of the foregoing opinions compels the conclusion that it was never intended by this court to hold that in determining the sufficiency of a pleading on demurrer resort may not be had to implication. To hold that resort may not be had to inference involves an absurdity. "The statement of the simplest fact embodies an element of inference. The most instant intuitive recognition of a familiar object necessarily constitutes an act of reasoning." Chamberlayne, Mod. Law, Ev. § 1801. See, also, same author, § 1733a. A consideration of the opinions cited, in volumes 169, 170, 171, and 173 of our reports, compels the con

declare any such fallacious rule.

Is the rule declared in the original opinion that resort may be had to inference, if "fair and reasonable," from the facts stated, too broad in its scope, or should it be restricted to such inferences as are necessarily compelled? It has already been shown in this and the original opinion that both at the common law and under the codes the rule conformed to the doctrine declared here. Is the rule in Indiana more restrictive? Perhaps the particular distinction between "fair and reasonable" and "necessary" inference has not been presented to this court. Expressions similar to those quoted from cases cited by appellant's counsel may be found in other other cases which they cite, yet in Douthit v. Mohr (1888) 116 Ind. 482, 18 N. E. 449, where the only error assigned was the action of the trial court in overruling a demurrer to the complaint, it was said: "It has been frequently held that a complaint upon a promissory note must show that the note remained unpaid at the time the action was instituted. Wheeler & W.


a more specific statement of the negligence imputed to it, that end could have been attained by motion."

[3] Our Civil Code enacted in 1852 was in the main re-enacted by the act approved April 7, 1881. Acts 1881, p. 240. It is asserted that the doctrine declared in the original opinion, to the effect that indirect averments by way of argument, etc., should be considered in determining on demurrer the sufficiency of a pleading, and that facts shall be deemed stated when fairly and reasonably inferable, is in conflict with the uniform rulings of this court prior to the enactment of 1881; that by such re-enactment the Legislature of 1881 adopted the uniform construction of this court, and consequently such a construction by adoption became a part of the act. The doctrine of adopting judicial construction by re-enactment of a statute is generally recognized. State v. Ensley, 97 N. E. 113. However, the construction must be clear and uniform. If the preceding decisions of the court have been antagonistic, it is evident the doctrine would be impossible of application.

need not be in direct terms. It is sufficient! clear enough "according to reasonable inif facts be stated from which it may be tendment." Stephen on Pleading, 379; Johnfairly inferred that the note remains un- ston Harvester Co. v. Bartley (1883) 94 Ind. paid. Downey v. Whittenberger, 60 Ind. 188. 131, 132; Ohio, etc., R. Co. v. Collarn (1881) The fair inference from the facts stated in 73 Ind. 261, 38 Am. Rep. 134, and cases citthe complaint in this case is that the note ed. In the last-named case the court said: remained unpaid when that pleading was "There is no hardship in this rule of pleadfiled." This ruling was cited with approval ing. If the defendant had desired in Malott v. Sample (1905) 164 Ind. 645, 648, 74 N. E. 245; Evansville, etc., R. Co. v. Darting, 6 Ind. App. 375, 33 N. E. 636, and Scott v. La Fayette Gas Co. (1908) 42 Ind. App. 614, 619, 86 N. E. 495. In Barkley v. Mahon (1883) 95 Ind. 101, 103, it was said: "It may be fairly inferred from the allegations in the complaint * that the sheriff set apart * * the property as exempt. * * An argumentative pleading may be so conclusive as to amount to an express allegation * when tested by demurrer. ** The defect in such pleading can be reached only by motion to make it more certain." In Wagoner v. Wilson (1886) 108 Ind. 210, 8 N. E. 925, it was alleged in the complaint that plaintiff advanced and loaned $1,500 to defendants, who "have refused to pay the plaintiff, though often requested so to do." The court said: "This, though not a direct and explicit allegation that the money advanced remained unpaid, made it reasonably certain by inference that the sum advanced was due and unpaid at the time the complaint was filed." A consideration of the cases of Antioch Coal Co. v. Rockey, supra, and of the other cases above noted, does not warrant the conclusion that this court has adopted a rule relating to inferences more restrictive than the one recognized by the common law and by the codes of other jurisdictions. It is not contended but that a court's construction should be fair. If, in the discharge of such duty, resort to inference is proper, surely, if the proposed inference is one that fairly and reasonably arises from the facts stated, it should be accorded the same effect as if arising from necessity. It is true that honest minds may draw different conclusions as to what is a reasonable and fair inference; the same may be said of a necessary one, for inference results from the exercise of the reasoning powers, and in the last analysis reason must of necessity be the final arbiter in all controversies over the proper interpretation of any written instrument.

It should not be forgotten that one against whom a pleading is directed has a remedy other than a general demurrer to render the pleading definite and certain, where it might be otherwise subject to varying construction. The special demurrer at common law and the motion to make more definite and certain (section 385, Burns 1908) under our Code perform that particular function, while the general demurrer is not designed to challenge the pleadings for such defects, if it is

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Counsel have cited a great number of cases to show judicial construction prior April, 1881, among which are the following: Sinker, Davis & Co. v. Fletcher, 61 Ind. 276; Clark v. Lineberger (1873) 44 Ind. 223; Utica Township v. Miller, 62 Ind. 230; Friddle v. Crane, 68 Ind. 583; Johnson v. Breedlove, 72 Ind. 368; Abell v. Riddle, 75 Ind. 345; Day v. Vallette, 25 Ind. 42, 87 Am. Dec. 353. Is the doctrine declared in the original opinion in conflict with the uniform rulings of this court prior to April, 1881? In Austin v. Swank (1857) 9 Ind. 109, it was contended that a reply was bad on demurrer for lack of a material averment. The court held: "If it was necessary that the reply should contain that averment, we may say that it did so in an argumentative form, which was sufficient upon a general objection." In Bell v. Eaton (1867) 28 Ind. 468, 92 Am. Dec. 329, in an answer to a complaint for a breach of marriage contract, it was alleged that defendant "learned that the plaintiff had been prior to his acquaintance with her delivered of a bastard child, and he avers that through the fraudulent concealment of the plaintiff he was at the time of the making of said agreement ignorant of the fact that the plaintiff had been so delivered of a bastard." Sustaining a demurrer to the answer was held erroneous. On the objection that the answer was argu


argument as so conclusive as to amount to 1 sisted; the defect should have been reached an express allegation of the facts when by a motion to make the paragraph more spetested by demurrer." This case was never reversed nor criticised. In Vance v. Schroyer (1882) 82 Ind. 114, 117, it was cited with approval, the court saying: "An argumentative pleading will not be held bad .on demurrer."


In Snyder v. Baber (May term, 1881) 74 Ind. 47, it was held on general demurrer to a complaint that an allegation that defendant refused to account to plaintiff for the assets of the firm implied a demand. The court In Bouslog v. Garrett (1872) 39 Ind. 338, said: "It seems to us that a demand for in a complaint on an account stated, it was an accounting before suit brought is necesalleged that "the defendant was indebted to sarily implied in and by this allegation. the plaintiff in the sum of The appellant's remedy was a momoney found due from the said defendant to tion to make more specific, and not a dethe plaintiff upon an account then stated murrer for the want of facts; for, when the between them, which said sum, together with appellant admitted, as he did by his demurthe legal interest thereon, remains unpaid, rer, that he had refused to account to the for which he demands judgment." In hold-appellee, he also admitted by necessary iming the complaint good the court said: "It plication that the appellee had demanded of may be advisable in such a paragraph to al-him the accounting which he had refused." lege an express promise to pay.


But we think this is impliedly included in the allegations of the paragraph in question." This case was never overruled, and was cited with approval in McDowell v. North (1899) 24 Ind. App. 435, 55 N. E. 789. In Downey v. Whittenberger (1877) 60 Ind. 188, it was held in a suit on a note that the averment "there is due" a specified sum, which was a sufficient allegation that the note remained unpaid. This case was never criticised, and was approved in Douthit v. Mohr, 116 Ind. 482, 18 N. E. 449.

In Mackenzie et al. v. Board (Nov. term, 1880) 72 Ind. 189, in holding a complaint sufficient to repel a demurrer for lack of capacity to sue, the court said: "The name in which the plaintiff sued fairly implied that the plaintiff was a corporation, and this implication was sufficient to withstand the appellant's demurrer for the second statutory cause."

The last three cases cited were decided at the May term, 1881, and consequently after the re-enactment of the Code (April, 1881). Three of the five judges then constituting the court, Worden, Niblack, and Howk, occupied the same position from January, 1877, to December, 1882, and during the time covered by the reports from 56 to 83 Ind., inclusive. Under such conditions, these later decisions are valuable in determining the attitude of this court on the question in controversy at and before the re-enactment. It is manifest that previous to the re-enactment of the Code of 1881 it had not been uniformly and consistently held by this court that indirect averments in a pleading would be entirely disregarded, nor that resort would not be had to inference, nor even that such resort should be restricted to that arising out of necessity, and consequently the rule in question is not applicable. The doctrine declared in the original opinion does not admit of inference arising from speculation, conjecture, or mere possibility; but that only which fairly and reasonably results from the facts stated. Perhaps an examination of the records in the many cases cited by appellant would disclose that in most of them the suggested inference was merely conjectural, and consequently that the conflict of rulings is more apparIn Utterback v. Terhune (May term, 1881) ent than real. There seems to be some mis75 Ind. 363, in considering a widow's com-apprehension on appellant's part of the scope plaint for partition, wherein it was alleged of the original opinion. It was not held that she owned as the widow of a named de- therein that the absence of a material avercedent one-third of the land in dispute, the ment from the complaint would on demurrer court said: "The allegation that she owned be deemed supplied by the curative statutes; one-third of the land argumentatively assert- neither was anything said on the subject of ed that she was the first wife, or a subse- resorting to the evidence to cure the defects quent wife having children by her husband, of the complaint. alive at his death."

In Indianapolis Sun Co. v. Horrell (1876) 53 Ind. 527, it was urged that the complaint was defective for failure to allege that the defendant named in the complaint as the "Indianapolis Sun Company" was a corporation. The court held: "Suing or defending by such name impliedly alleges that it is a corporation."

[4] Counsel assert that, even if "we go into the realm of inferences," the interpretation placed on the complaint is arbitrary and absurd.

In Ohio, etc., R. Co. v. Collarn (May term, 1881) 73 Ind. 261, 38 Am. Rep. 134, an action for personal injuries, a complaint was held sufficient to repel a general demurrer. The It is further asserted that the opinion is court in its opinion (by Worden, J.) said: "It in violation of rules "as firmly fixed as the is not certain from the allegation in what Ten Commandments or the Roman Tables," the alleged carelessness and negligence of and "rules well known to every lawyer qual

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