Board, etc., v. Gibson. grade line for it. The natural surface of the ground on which the building was to stand was irregular, and it was higher on one side than on the other. After the fixing of the grade line, appellee proceeded to excavate the dirt for the trenches for the walls of the building. The depth of the exterior trenches, when completed, was three feet and ten inches below the grade line, and it was at that level, if the specific provisions of the plans and specifications had been followed, that the footings for the exterior walls should have been put in. Appellee then notified the members of the board of commissioners and the architect that the excavation was ready for their inspection. The lower surface of the ground in the trenches was, as appellee testified, “part of it loam, some of it hard-pan, some sand and gravel, varied at different points all around the building". He further testified upon this subject that "there would be a few feet of sand, and some hard-pan, and on the low side we would come around to sand or loam before we would strike the hard-pan". After examining the trenches, the architect said, in the presence of appellee and the members of the board: "This soil or ground is not of sufficient strength to maintain a building of this character, and I will not permit the building to be placed on that foundation. It will not resist the weight of the building". He then directed that the excavation be carried down to a solid and suitable foundation, and that twelve inches of concrete should be put in below the stone footings indicated in the plans. The board entered an order in its record, on the same day, as follows: "In relation to court-house foundations. The matter of the foundation under the proposed new court-house now being under consideration, and the board being fully advised as to insufficiency of the same at the present depth of excavation, and the architect having directed that a more secure foundation be made, it is hereby ordered that concrete footings be put under the walls of the building, the same to be one foot in thickness, and to project beyond the Board, etc., v. Gibson. face line of the present footings at least six inches on either side thereof; said concrete to be composed of one part Portland cement, two parts clean sharp sand, and two parts broken stone, and such excavations shall be made as are requisite and necessary to secure a firm and solid foundation." Appellee did not know that this order had been made until he was advised of it that afternoon, when all of the parties again met. After further consideration, it was suggested by one of the members of the board that, in view of the fact that the foundation would have to be put down much deeper, it would cost but little more to make a subbasement, to put the steam pipes, etc., in, and save the basement rooms for offices. The members of the board asked the architect for an estimate of the cost of the change, but he said that he could not make it at that time. Then they asked the appellee to make an estimate. After making some borings, to ascertain the character of the soil below, and making a calculation as to the cost of the additional labor and material necessary to accomplish the change, appellee met with the three members of the board and the architect in the appellee's temporary office that had been put up on the court-house square. Appellee then informed the members of the board that he thought that the construction of such a subbasement as he understood that they wanted would cost about $20,000. It was finally orally agreed that such subbasement should be put in, and that the architect should make an estimate, presumably of the cost, later. The following agreement was then reduced to writing, and signed by the three commissioners and the appellee: "It is hereby stipulated and agreed by and between the board of commissioners of Fulton county, Indiana, and Jordon E. Gibson, contractor, that said Gibson shall remove and excavate the earth, from the bottom of the proposed new court-house, at Rochester, Indiana, to a depth that shall be sufficient to establish a firm and safe foundation thereunder, and concrete the same as is provided in the order Board, etc., v. Gibson. therefor, this day made, and is to construct and complete entire a subbasement therein, furnish all material, and iron and steel work, necessary to do a first class job. And it is further agreed that the total cost of which shall not exceed the sum of $20,000, the exact amount of said work, under said sum, shall be paid on presentation of a certificate of A. W. Rush, architect. Dated June 12, 1895." The specifications that were a part of the original contract contained, among others, the following provisions: "The drawings and writings are intended, together, to cover the entire and perfect completion of the work in every respect, and everything described or shown or reasonably implied by them, and which may be necessary for the perfection of the work and general excellence of the whole is to be included and will be required, whether specially mentioned in these specifications or particularly shown by the drawings. The drawings and writings together are intended to cover the entire completion of the building in every particular and anything described or shown or reasonably implied by them, and which may be necessary for the perfection of the work and the general excellence of the whole and to render the building fit for occupancy, is included. The architects will * * * decide on the quantity, quality, and value of the materials offered, omitted, claimed as extra, On these points the architects' decision will bind all parties. Excavation will be made for all walls, footings, and piers according to the area and the several depths required by the plans. and sections, and so that all foundations will go down and rest on solid ground." It is further provided in said specifications that "all footings for piers, columns, and the walls of the building are to be laid below the basement floor line and to the depths shown on sections." * * * The fourth section of the contract authorized the board to make changes, and provided that "the difference for work omitted, as aforesaid, shall be deducted from the amount Board, etc., v. Gibson. of this contract, by a reasonable and proper valuation thereof, and for any additional work required, as aforesaid, in alterations, or modifications of said work, the amount based upon same prices, at which contract is taken, shall be agreed upon, before commencing additions, alterations or modifications aforesaid, as provided and hereinafter set forth in the seventh clause of this contract." The sixth section of the contract is as follows: "Should any dispute arise, respecting the true construction, interpretation or meaning of the drawings or specifications, or of any part thereof, or as to what is extra work, outside of the contract, the same shall be decided by A. W. Rush & Son, architects, and the said board, and their decision shall be final and conclusive." The seventh section of the contract contained the following provision: "No new work of any description done on the premises, or any work whatsoever, shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractor to the superintending architects and the board of commissioners, and their signatures obtained thereto." After the contract of June 12, 1895, was executed, the appellee constructed said subbasement, and in doing so he put in the footings for the exterior walls nine feet below the depth of the trenches as originally dug, and made corresponding changes in the depths of the foundations for the interior walls and tower piers. There is testimony in the record which conflicts with many of the above statements, but we have set out the evidence in outline, except upon the subject of values, that tends to support the verdict. Upon the completion of the building, appellee filed his said claim with the board of commissioners, but the claim was disallowed. The first objection urged by appellant to the proceedings of the court below is that said court overruled appellant's motion to make the complaint more specific. The appellant has attempted to present this question by an order of court Board, etc., v. Gibson. directing that the motion be made a part of the record without a bill of exceptions. That portion of the proceedings is not a part of the record, for two reasons: (1) Because it does not appear that the order of court, by which it was sought to bring said motion into the record, was made on the motion of either party (§662 Burns 1901); (2) because the motion was not spread on the order book, as a part of the court's order (Russ v. Russ, 142 Ind. 471; Close v. Pittsburgh, etc., R. Co., 150 Ind. 560; Allen v. Hollingshead, 155 Ind. 178; Ewbank's Manual, §27). Appellant contends that its demurrer to each paragraph of the complaint should have been sustained, for the reason that, as it must have been known that the proposed work would cost to exceed $500, the board should have caused plans and specifications thereof to be prepared, and given notice of its purpose to let a contract for such construction, in accordance with the statute then in force. §§4243, 4244 R. S. 1881. This is practically an effort to set up the defense of ultra vires to a contract that has been fully executed by the opposite party. Such a claim, when, ex aequo et bono, the corporation ought to pay, is odious. The statute referred to was intended as a safeguard of the public interest, and we are disposed to enforce it according to its spirit. We do not think, however, that it was intended to apply to a case like this, where a sudden and unforeseen emergency confronts a board of commissioners after it has regularly let a contract for a public building, and where it is to be desired to avoid delay, and not to put a new contractor on the work, but to have the work continued by the general contractor for the construction of the building. In such a case, where it can be said that the new work is but an incident of a work before regularly contracted for, and where it does not appear that the act of the parties was a mere effort to evade the statute, we do not think that the statute is applicable. As said by this court in Bass, etc., Works v. Board, etc., 115 Ind. 234, 243: "The statute |
