and the contract in question then awarded to one North. The relators thereafter tendered for acceptance by the city a contract in the form provided by the resolution of July 12th and, on appellant's refusal to execute the same, they instituted this proceeding in mandamus to compel such action. Appeal from Circuit Court, St. Joseph County; W. A. Funk, Judge. Action by George A. Thomas and others against Etta K. Heddon and others. From an adverse judgment, plaintiffs appeal. Transferred to Supreme Court under Acts 1901, c. 259 (section 1405, Burns' Ann. St. 1914). Reversed, with instructions. Perry L. Turner, of Elkhart, and Anderson, Parker, Crabill & Crumpacker, of South Hubbell, McInerny, Bend, for appellants. McInerny & Yeagley, of South Bend, and George T. Buckingham, of Chicago, Ill., for appellees. [1] The general rule is well settled that as mandamus is an extraordinary writ or proceeding, not only must a clear legal right in the relator be shown, but it must also appear that there is no other adequate remedy, and that it is the imperative duty of the defendant to do the act, or acts, the performance of which is sought to be enforced. State ex rel. v. Beck, 175 Ind. 312, 317, 93 N. E. 664; Town of Windfall City v. State ex rel., 172 ERWIN, J. This action was brought by Ind. 302, 306, 88 N. E. 505. Applying the appellants to compel specific performance of principle thus announced to facts which are a contract of lease of certain real estate, similar to those in the present case, the Su- with option attached for the purchase of said preme Court of New York, in People ex rel. real estate, on October 1, 1911. Trial was v. Aldridge, 83 Hun, 279, 31 N. Y. Supp. 920, had by the court, and special findings of fact has held that where at the direction of the were made; conclusions of law stated therecommon council of a city, a committee rep- on in favor of defendants, appellees herein, resenting such council has obtained bids for and judgment rendered accordingly. Errors a public work and has awarded a contract relied on for reversal are with others that the therefor to one of the bidders, and after-court erred in each of its conclusions of law wards the council votes to reconsider its from 1 to 9, inclusive. previous action and to postpone further consideration of the same, no further action on the part of the committee or of the mayor is enforceable by mandamus; that the remedy, if any, of the person whose proposal was accepted is by an action for damages. See, also, People ex rel. v. Campbell, 72 N. Y. 496; Day v. Ryan, 245 Pa. 154, 91 Atl. 633; 26 Cyc. 291. [2] So, in this case, whether the action of the common council in reconsidering its award of the contract to relators was legal or illegal, a question which we may not here determine, it is clear that such action operated as a revocation of authority in appellant to execute the contract tendered by relators, and he may not be compelled to sign the same. Judgment reversed, with instructions to the trial court to restate its conclusions of law in accordance herewith. (186 Ind. 48) THOMAS et al. v. HEDDON et al. * (No. 22947.) (Supreme Court of Indiana. Nov. 28, 1916.) SPECIFIC PERFORMANCE 97(3)_ CONDI TIONS PRECEDENT-OPTION TO PURCHASE. Lessees need not leave the state to indicate their election to purchase under the option in their lease; so that their ineffectual efforts, outside the state, to make their election and tender of purchase money and demand for a deed, does not bar their right to specific performance, they bringing their action within five days after expiration of such option, and making all persons interested parties thereto. The facts found by the court are in substance as follows: On September 29, 1899, John McNaughton since deceased was the owner of a certain block of real estate in the city of Elkhart, Ind. On said date McNaughton entered into a written contract with appellant George A. Thomas and his father, Warren H. Thomas, which written contract was duly acknowledged and recorded, by which he leased the property above mentioned to George A. and Warren Thomas for the period of 12 years from October 1, 1899. The lessees covenanted to pay rent for the leased premises at the rate of $85 per month in advance on the first of each month; to pay all taxes and assessments against the property as the same might become due and keep the buildings upon the premises in good condition and insured in the sum of $6,000, and to pay insurance policies upon the same or any additional buildings which might be built thereon. The lessees were given the right to make alterations, additions, and changes on the buildings upon the leased property, and the lessor agreed to furnish a sum not to exceed $5,000 to be used to erect a substantial two-story brick building on the West half of the leased lot. The lessees were to furnish the balance of whatever would be necessary to construct the building. The lease further provided that the lessees might, at their option, purchase the leased premises on October 1, 1911, for the sum of $17,000, and upon the payment of said sum the lessees were to receive a deed of general warranty for said lot, conveying the prem[Ed. Note. For other cases, see Specific Perises to the lessees, their heirs or assigns. formance, Cent. Dig. §§ 296-298; Dec. Dig. Under the terms of said lease the lessees went ~97(3).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes into possession of said lot and did expend sums of money in improving said property. The lessee Warren H. Thomas died some time afterwards, testate, leaving all his property and rights in the lease to his wife, Emma F. Thomas, who afterwards, but prior to the death of McNaughton, assigned her right and interest in the lease to appellants George A. Thomas and Edna B. Thomas. The lessor, John McNaughton, died testate on April 5, 1911. His will was duly probated, and the appellee Joseph H. Defrees was nominated the executor thereof. to be a special or limited warranty. At said time certain heirs of John McNaughton were threatening to bring suit to contest his will. These facts were known to both appellants and appellees. The said lessees paid all the taxes and insurance and repair bills mentioned in said instrument, and paid all the rentals referred to, to John McNaughton until his death, and from that time till October 1, 1911, they paid said rentals according to the terms of said instrument to Harriet M. Defrees. That improvements were made upon said real estate according to the terms of the instrument. That the will of John McNaughton, together with a codicil thereto, was probated in said county on April 8, 1911. That Joseph Defrees was named as executor in said will and qualified as such. The court found that all parties to whom election to purchase and payment of the money could have been made were nonresidents of the state on October 1, Testator made 19 bequests to as many different persons of specific sums of money, and made provision for Etta K. Heddon, which he afterwards changed by codicil. He made Harriet McNaughton Defrees, his niece, residuary devisee. On September 30, 1911, the appellant George A. Thomas went to Chicago, Ill., and there met the executor and his wife, Harriet Defrees, the residuary devisee, for the purpose of exercising his option to purchase the premises under his option. He had with him the sum of $17,000 in currency which he exhibited to Mr. and Mrs. Defrees, and the question as to whom the money should be paid, whether to the execu-301, 303; Becket v. Bledsoe (1853) 4 Ind. 256. tor or to Mrs. Defrees as residuary devisee, was discussed, as was also the character of the deed that should be executed for the conveyance of the property. The 1st of October fell on Sunday, and it was agreed that negotiations were to go over till Monday, October 2d. On the last-named date the assignment from Emma F. Thomas to George A. Thomas and Edna B. Thomas was handed to Mr. Defrees. Mr. Thomas then said he was there to make a tender to Mr. Defrees as executor of the will and requested a deed to the property, and if he could not make him a deed to have one furnished for him. At the same time the money was handed to Mr. Defrees. He said he didn't believe he had a right to take it and did not. Mr. Thomas then said the money would be on deposit in the first National Bank of Elkhart, Ind., when he (Defrees) was able to furnish a deed. A suggestion was made by attorney for Mrs. Defrees that if a tender was made to her he would advise that she take it and give her quitclaim deed to the property therefor. The money was then tendered to Mrs. Defrees, conditioned that she give a warranty deed for the property. The money was then, later in the day, tendered to Mr. Defrees, and it was said to him in substance that he (Thomas) made the tender on behalf of the appellants, and that he demanded of him as executor that he perform the conditions of the contract. Mr. Defrees took the money, but later returned it. Attorney for Mrs. Defrees said he had a quitclaim and warranty deed to the property, and was ready to deliver either one for $17,000. The warranty deed was read and found 1911. It is not incumbent upon appellants to leave the state for the purpose of indicating an election to purchase, under the terms of their contract. West v. Chase (1852) 3 Ind. outside of the state to make his election to It must follow that any ineffectual effort purchase, and tender the purchase price and demand a deed, could avail appellees nothing, or weigh against appellants so as to bar their right to a decree for specific performance, whereas in this case they brought their action within five days after the expiration of their option to purchase and made all persons in any wise interested in the real estate in question parties to the action. Page v. Hughes, 41 Ky. (2 B. Mon.) 439. The case last cited seems to so completely state the rules applicable in this case that we include herein what was said by the court in that case, to wit: tion. election of the lessees, to be manifested within The an elective payment of it. Had the payment been made or tendered within the prescribed period of election, there could have been no escape from the obligation to convey the lot. If there be no such obligation now, or if it may be eluded, the only reason for such a conclusion must be Page's failure to pay or tender the $2,300 on or before the 1st of October, 1840. That failure does not appear to have been elective or voluntary, but rather seems to have been a consequence of circumstances beyond his control, and resulting from the conduct or condition of the representatives of Hughes. heirs, and not the administrator, had the technical right to the price of the lot. The administrator, therefore, after consulting counsel, determined that he would not receive the money. Why did he consult counsel unless he knew that Page intended to pay the money? Page could not, therefore, pay the money to the administrator. How could he pay it to the heirs, nonresident, scattered and unknown, and many of them infants? Besides, he was not bound to make payment without obtaining a perfect conveyance with warranty; and that he could not have procured without a suit in chancery. That suit he therefore brought. Must he forfeit to those heirs his valuable buildings only because his bill was not filed against them on the 1st instead of the 22d of October? We think not. Could he have found them all and had he offered to them the money, they would have had no right to it without making him a conveyance, which he ought not to have received. Their absence and disabilities were no faults of his. How then can it have been material to them whether the suit, which their condition rendered unavoidable, had been instituted 21 days sooner than it was? There is no ground for imputing to Page bad faith, culpable negligence, or a voluntary noncompliance with the letter of the contract of sale. And there can be no doubt that he had long determined and was anxious to consummate that contract and secure his costly improvements. It seems to us that the facts would not authorize the presump-clusively obviated by the filing of a bill on the tion that he would not have tendered the $2,300 to Hughes, within the ten years, had he survived to the end of that time. "These facts constitute a sufficient excuse for his failing to pay or tender the money on or before the 1st of October, 1840. And, as a suit became indispensable, the bringing of it on the 1st of October could not have been material to the interests of the heirs, because, without the suit, there could have been no doubt as to his having elected to pay for the lot and receive a conveyance of the title; and, therefore, the heirs could not have been subjected to any vexation or loss by uncertainty as to what he had determined to do and would do, whenever they should be willing and able to comply with their father's covenant to make a title. Under the circumstances of the case, the filing of the bill within the term of ten years was material for no other purpose than that of manifesting an election to buy and an offer to pay for the lot on the prescribed terms. As already suggested, that election had been long before clearly in dicated by unequivocal acts. Those acts, it is true, did not bind Page-nor would even the fil ing of a bill, within the ten years, have bound him; for had he filed it on the 1st, he might have dismissed it on the 2d of October; and, interpreting the stipulation respecting a sale as altogether unilateral, neither Hughes nor his representatives could ever have coerced the conventional price. The only mode of selling it was "The utmost, therefore, that Page could have done on the 1st of October, was to manifest, in some mode, his election to take the lot as purchaser, and offer to pay for it. The filing of a bill was certainly not the only effectual mode of either making or announcing that election or offer. The purpose of the suit is to enforce an election previously made, and which, though not perhaps announced in words, because there was no person able or willing to respond, was yet most emphatically and intelligibly expressed by acts unequivocal and conclusive as to the fact of election to purchase, and only equivocal or inconclusive as to the intention to pay the price within the prescribed time. But this want of certainty as to a payment or tender within the ten years, if the condition of Hughes' representatives had either permitted or rendered such an act necessary, could not have been con 1st of October, 1840, with even an accompanying offer also to pay the money, which could not have been binding until accepted. Such an offer would not have proved either that Page then had the money or would have paid it within the prescribed time to any person or persons qualified to receive it and make the conveyance. The filing of such a bill within the term would have been more prudent and safe than the course which has been adopted; but it would not have been more beneficial to the representatives of Hughes nor insured to them an earlier or a more certain payment of the $2,300. "It does appear to us, therefore, that Hughes' representatives cannot, with a good conscience or grace, insist on a forfeiture to themselves of Page's houses, and that he might yet obtain a decree for a conveyance of the title to the lot without violating any doctrine of equity or principle of justice.' We are of the opinion that the court erred in its conclusions of law. It is therefore ordered that this judgment be reversed, with instructions to the court below to restate its conclusions of law in favor of appellants, and to appoint a commissioner to make conveyance of the real estate in question to appellants, upon the payment of the agreed purchase price. 185 Ind. 626) claimed by appellees against the city of New CITY OF NEW CASTLE v. DINGLE et al. Castle. The complaint alleges, in substance, (No. 22527.) that the appellees in the year 107 contracted (Supreme Court of Indiana. Nov. 28, 1916.) with appellant to build a portion of Race 1. MUNICIPAL CORPORATIONS 374(1) street in appellant city by grading and pavSTREET IMPROVEMENT-BREACH OF CONTRACT ing the same with brick, and by constructing -LIABILITY OF CITY. cement sidewalks on either side thereof; that In the improvement of streets, the city, which, under the statutes, is given exclusive the appellees proceeded to construct the power over streets, and from which authority street according to the contract, but that to improve them eminates, and not the abutting before the completion of the same, or during owners, made liable for the cost of improvement, its construction, they were delayed by the but who have remonstrance rights only, is the principal, as regards liability to the contractor for breach of the contract by city officials. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 905, 910; Dec. Dig. 374(1).] 2. MUNICIPAL CORPORATIONS 374(1) STREET IMPROVEMENT-BREACH OF CONTRACT BY CITY-LIABILITY. While the abutting owners are liable for the cost of street improvements contracted for by the city, the city is liable to the contractor for damages from its breach thereof by failure to do its duty thereunder. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 905, 910; Dec. Dig. 374(1).] 3. MUNICIPAL CORPORATIONS 374(1) STREET IMPROVEMENT-BREACH OF CONTRACT BY CITY-REMEDY. Where a city improperly orders a contrac tor for street improvements to remove part of his work and do it over, he need not refuse to do, and bring mandamus, or action for labor and material, but may do it over, and sue the city for damages for unlawfully compelling it to do the work a second time. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 905, 910; Dec. Dig. 374(1).] 4. MUNICIPAL CORPORATIONS failure of the city to remove certain telegraph, telephone, or other poles that were in the street, and that by reason of the delay caused by such failure on the part of appellant appellees were compelled to delay the Work until the summer of 1908, at which time they completed the work on the street, which was accepted by the city officials; that appellant issued bonds to the appellees for the amount of the contract price; that in the fall and winter of 1907 they were ordered by appellant to proceed with the construction of the cement sidewalks along the street at a time when the weather was too cold for the Proper construction of cement walks, and that in compliance with the order received from the town board, appellees proceeded to construct a portion of the sidewalk along the street, and that the same froze, and by reason of such freezing appellees were compelled to take up a portion of the walk and reconstruct the same; that appellees were compelled to borrow money for the purpose of carrying on the construction of the street, and had gathered together a large number of men and tools and implements necessary for the construction of the street and sidewalks, for which they invested a large amount of money, and that by reason of the delay caused by the failure of the town promptly and properly to remove the poles within the street, they were compelled to be without the use of these tools and implements and to pay interest on the money so borrowed; that the town board during the construction of the street condemned a portion of the sidewalk that had been constructed, and required the appellees to remove the same, which they did at the order of the town board, and that at the further order of the town board they reconstructed the removed sidewalk; that the walk so condemned Appeal from Circuit Court, Henry County; by the town board was walk that had been Ed. Jackson, Judge. 374(1) STREET IMPROVEMENTS-DELAY IN EXECUTING CONTRACT-BREACH BY CITY. That on acceptance of a bid for street improvement, the successful bidder did not, as required by Acts 1905, c. 129, § 265, enter into a written contract for faithful execution of the work, and give a bond to secure performance of the contract and hold the city harmless because of any act or omission by him, does not prevent him, having proceeded at once with the work, as directed by the city officials, and having afterwards, on presentation thereof, executed the contract and bond, dated as of the time of acceptance of the bid, from recovering of the city for its breach of the contract before it was executed; the city having accepted the work and consequent benefits of the contract and bond. [Ed. Note.-For other cases, see, Municipal Corporations, Cent. Dig. §§ 905, 910; Dec. Dig. ~374(1).] Action by Samuel Dingle and others against the City of New Castle. Judgment for plaintiffs, and defendant appeals. Transferred from the Appellate Court under section 1429, Burns' Ann. St. 1914. Affirmed. William O. Barnard and William E. Jeffrey, both of New Castle, for appellant. Forkner & Forkner, of New Castle, for appellees. COX, J. This appeal is from a judgment in an action in the court below for damages caused to crack by reason of the fact that the town board, in constructing ditches and removing poles, had failed to properly restore the dirt so removed, causing the ground beneath the sidewalk to give way, and leaving the walk without proper support. For all of which appellees claim to have been damaged in the sum of $2,000. To this complaint appellant filed a demurrer, which was overruled. Appellant then filed an answer in three paragraphs, the first being a general denial, the third a plea of pay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment, and the second an answer which was intended to evidence the contract for the imsubstance, as follows: That the work and improvement of the street, and after the exeprovement of Race street in the town of New cution of the same the appellees proceeded Castle, Ind., set out and described in the com- with the completion of the contract, at the plaint and the contract filed with the com- expense of over $6,000. That the town stood plaint and all proceedings had in relation to by and witnessed the progress of the work such improvement, were had and entered both before and after the execution of the coninto under and by virtue of section 265 of an tract, and requested and demanded the apact of the General Assembly (Laws 1905, c. pellees to proceed with the work, and after 129), entitled “An act concerning municipal | the completion of the same they accepted corporations," approved March 6, 1905, and all acts amendatory and supplementary thereto, and the entire cost of the improvement was assessed as special benefits to the abutting and adjacent property owners, and the town of New Castle assumed and agreed to pay no part of the cost of the improvement. That the appellees did not give any bond to the approval of the board of trustees of the town to secure the performance of the contract set out in the complaint, as provided by law, until July 7, 1908, and all acts, omissions, and transactions set out and complained of by appellees had been consummated and had transpired prior to that date, and the alleged causes of action sued on had all accrued prior to that date. To this answer appellees replied in two paragraphs; the first a general denial, and the second, in substance, as follows: That in the month of July, 1907, the town of New Castle, by proper resolution, determined to improve the street in the town known as East Race street, by grading and paving the same with brick, and cement curb and sidewalk. That under and pursuant to the resolution the town prepared, and caused to be prepared, full and complete plans and specifications for the work by its civil engineer, and adopted the same, and by proper notice, as required by law, advertised for bids for the construction of the work. That appellees submitted, at the time required in the notice thereof, their bid in writing, proposing to construct the street, curb, and sidewalk, in all respects according to the specifications and plans therefor. That thereafter the town of New Castle duly accepted the bid made by appellees, and directed the engineer to enter into a written contract, with bond, with the appellees for the construction of the work. That the engineer was delayed, for some cause unknown to appellees, in the preparation of the contract and bond, but that the board of trustees ordered the appellees to proceed with the work, which they did under the order and directions of the board, and pursuant to the terms of their bid and proposal and the written acceptance thereof by the town. That after the same had been partly completed, the engineer of the town prepared the contract set out in the complaint, with the proper bond for the execution of the same, and that they were both dated back to the date of the acceptance of the bid, and signed by appellees and appellant. That the contract and bond were in the improvements and assessed the costs thereof, according to the terms of the agreement, upon the abutting property owners, all of whom acquiesced in the same. The appellees aver that by the execution of the agreement set forth in the complaint, and by standing by and allowing the work to proceed without objection, and by accepting the work and assessing the costs therefor, the appellant ratified and confirmed all acts and liabilities under the contract, and waive all questions of its legality by reason of the failure to reduce it to writing at the time entered into, and that the contract set forth in the complaint is of the same binding force as if it had been entered into, signed, and executed at the time the oral agreement was entered into. Appellant demurred to this reply, which demurrer was overruled. Following this ruling there was a trial by jury on the issues formed by general denial. The jury returned a verdict for appellees for the sum of $250, upon which the court rendered judgment for the appellees. Appellants filed a motion for a new trial, setting up as causes therefor that: (1) The verdict of the jury was not sustained by the evidence; (2) the verdict of the jury was contrary to law; (3) the court committed certain errors in the trial of the said cause in giving instructions and in admitting evidence. This motion was overruled by the court. The rulings of the court on the demurrers to the complaint and reply and on the motion for a new trial are assigned as error in this court. At the conclusion of the offer of evidence the court, in its instructions to the jury, directed them to disregard that portion of the complaint which claimed damages for the loss of interest paid on money borrowed to carry on the construction of the street, and for any loss occasioned by the fact that the appellees were unable to use the workmen hired and the tools purchased at the time they were so hired and purchased. [1] It is the contention of appellant that it is in no case liable for the damages caused by the failure of the city to accept the work as done, and for its acts in requiring appellees to reconstruct certain portions of the walk, nor is it liable for any delay caused by neglect in preparing the streets for work. In support of this contention it relies on the statute under which the work was done and on the contract entered into by the parties. It is first insisted that the officials in order |