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Vigo Township v. The Board of Commissioners of Knox County.

It is said, however, that the warrants sued on are, in effect, the promissory notes of the county, and that the presumption must be indulged that they were issued upon a valid consideration, and that, hence, the county is liable for their payment. Brownlee v. Board, etc., 81 Ind. 186, and Board, etc., v. Day, 19 Ind. 450, are relied on as sustaining this view.

The cases cited were suits upon warrants issued for obligations of the county—corporate debts. In such cases it may well be that warrants drawn by the auditor upon the treasurer are, in some sense, analogous to promissory notes, and presumptively upon a valid consideration. In the case under consideration it affirmatively appears, however, that the warrants were not drawn to satisfy a county or corporate obligation. In drawing the warrants upon the county treasurer for the several funds in his hands apportioned and belonging to the several townships, the county auditor does not act as the agent of the county. In such act he is discharging a governmental function for the benefit of the township. The warrant creates no obligation against the county; it is simply the authority upon which the county treasurer pays over, and the township trustee receives, the funds belonging to his township.

Lastly, it is contended that the county is liable to the township for ihe proportionate share of the thirty-five thousand dollars received upon the compromise made by the county auditor with the bondsmen. It is said the county is liable because the money has been paid into the county treasury. Doubtless this contention would be maintainable if it appeared that the money had been actually covered into the general fund of the county. This, however, does not appear. All that is shown in that regard is, that the county auditor compromised the suit on the official bond of the treasurer, and received and accepted thirty-five thousand dollars in full satisfaction for all the moneys appropriated by HollingsVol. 111.—12

Vigo Township v. The Board of Commissioners of Knox County.

worth. It does not appear that the money has been covered into the treasury to the credit of the general fund of the county. It must be presumed that the auditor has performed his official duty, which clearly was to ascertain the proportionate share of the moneys recovered justly belonging to Vigo township, and to put it into the hands of the treasurer subject to his warrant in favor of the township trustee. In contemplation of law, moneys collected for the townships do not go into the corporate or county treasury. Such moneys, according to the policy of the statute, remain in the hands of the county treasurer as an independent public officer, for the benefit of the townships, until they are paid over by him upon the warrant of the auditor. Lorillard v. Town of Monroe, 11 N. Y. 392.

In the treasurer's hands the moneys are impressed with a trust for the benefit of the townships. Being trust funds, so far as they have been recovered and are capable of ascertainment, they must be restored to the proper cestui que trust. If they have been paid into the corporate treasury of the county—that is, credited to its general fund—it is the duty of the county board, upon proper application, to restore them. If the auditor has turned them over to the county treasurer, to be held by him in his official capacity, it is the duty of the auditor and treasurer to ascertain the amount due the township and to restore it to the proper trustee. Dewey v. Board, etc., supra. There can be no difficulty in ascertaining the amount of the trust fund, and in whosesoever custody it is found it may be reached for the benefit of the township. Rowley v. Fair, 104 Ind. 189; Bundy v. Town of Monticello, 84 Ind. 119; Naltner v. Dolan, 108 Ind. 500.

The judgment is affirmed, with costs.

Filed May 27, 1887.

The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al.

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111 179

1168 216,

No. 12,827.

The Louisville, Evansville And St. Louis Railway
Company V. Donnegan Et Al.

Contract.Construction of Railroad.Estimates of Engineer.Stipulation
that They Shall be Conclusive.Recourse to Courts.—A stipulation in a con- 1|t 17s)|
tract between a railroad company and a contractor, that the estimates IM_5CW
made by the former's engineers as to the quality, character and value of JpJ
the work performed by the contractor shall be final and conclusive jui 179
against the latter, "without further recourse or appeal," can not I162 396
deprive him of the right to resort to the courts for the recovery of what
may be due him, notwithstanding the estimates.

Same.Taking Control of Work from Contractor.—A provision in the agreement, that, if the contractor fails to employ snch a force of workmen as the company's engineer may deem adequate to a completion of the work within the time fixed, the latter may do so and charge the contractor with the amount paid in wages, must be given a reasonable construction, and control of the work can not be taken from the contractor without sufficient cause.

8ame.Competency of Engineers.Implied Undertaking as to.—In such case there is an implied undertaking on the part of the railroad company that the engineer to be put in charge shall be competent, honest and reasonably careful, and that he will not make delays, caused by his wrongs, a pretext for taking the work out of the control of the contractor.

Same.Material Furnished at Direction of Engineer.Compensation Notwithstanding Contract.—Where the work which the contractor undertakes to do is to be performed under the direction of the railroad company's engineer, who is clothed with almost absolute authority as to the manner in which it shall be done, the contractor is entitled to pay for piling of the original length ordered by the engineer and subsequently shortened at his direction, notwithstanding a provision in the contract that the contractor is to be paid for the lineal feet of piling actually used.

Evidence.Experts.Railroad Builders.Time of Performing Work.Opinion.—Persons experienced, as contractors, in railroad building are experts, and may testify that, but for delays caused by the railroad company and its engineers, the work contracted for could have been completed within the time fixed in the contract.

Same.Action by Railroad Contractor.Cost of Work.—In an action by a contractor against a railroad company, wherein it is alleged that the defendant had hindered and delayed the plaintiff in the prosecution of the work, and had wrongfully taken it out of the latter's control, and completed it at a reckless and extravagant cost and charged the plainThe Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al.

tiff therewith, evidence as to the reasonable cost of the work is competent

Supreme Court. Brief. Mere Restating of Causes for Kern Trial. — The mere restating in a brief of the causes assigned for a new trial does not meet the requirements of the rule of the Supreme Court relating to briefs.

Same.References to Record.—Parties asking for a reversal of a judgment must furnish references to such portions of the record as will show that error intervened in the proceedings below.

From the Vanderburgh Circuit Court. A. Iglehart, J. E. Iglehart and E. Taylor, for appellant. J. 8. Buchanan, H. C. Gooding and C. Buchanan, for appellees.

Zollars, C. J.—In April, 1881, appellees, as partners, entered into a written contract with the railway company for the construction of a certain section of its road in the State of Illinois. It was therein agreed that the work should be completed on or before the 1st day of August, 1881.

It was expressly stipulated that time should be of the essence of the contract.

Appellees undertook to do all the grading, masonry, and all such other work as might be necessary to construct the stipulated section of the road in accordance with the specifications, made a part of the contract, as they might be applicable, and agreeably to the directions of the engineer in charge of the work, given from time to time during the progress of the work.

The work was to' be paid for by the company upon monthly and final estimates made by its engineers, and it was expressly stipulated that the estimates thus made by the engineer in charge of the work should be conclusive as against appellees, " without further recourse or appeal." The chief engineer might review these estimates, and if he did so, his estimates were to be substituted for the estimates reviewed. For extra work the company was to pay the cost and ten per oent. additional. The extra work was to be estimated by The Louisville, Evansville and St. Louis Railway Co. v. Donnegan et al.

the company's engineer, and these estimates were also to be final and conclusive as against appellees.

Appellees were to employ such a force of workmen as the engineer might deem adequate to the completion of the work within the time fixed. If they did not employ such a force as the engineer might thus deem adequate, he might employ such number of workmen as in his judgment would be necessary, and at such wages as he might find necessary and expedient; pay all such persons, and charge appellees with the amount as so much money paid to them upon the contract. Power was also given to the company's chief engineer to annul the contract, upon a written notice to appellees, if, in his judgment, the work was not prosecuted by them in a proper manner and with sufficient speed. It was also stipulated that, upon thirty days' notice to appellees, the company might, at any time, without cause, annul the contract, in which event they should be entitled to pay for work done up to that time. The right was reserved to the company's chief engineer to order, in writing, any modification or alteration to be made in the specifications, profiles and plans, and in like manner to direct and order the omission of any portion of the work mentioned in the specifications, or to substitute any other work for such portions. If he should determine upon earthworks, bridges, culverts, walls, or other work in addition to that embraced in the contract, appellees were bound to do such work for the prices agreed upon for like work, and upon the same terms and conditions, except with regard to the time of completing the work, which might be reasonably extended at the discretion of the chief engineer.

The first paragraph of appellees' complaint was based upon that contract, and its violation by appellant.

It is alleged therein that appellees began the work at once, furnished material, and continued to construct the road under the contract until in August, 1881, when the railway company, without right, and against their will, took charge of the work and prosecuted the same to completion; that they,

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