(1) The stipulation in the policy was as follows: "All claims under this policy are debarred unless prosecuted within one year from the date of the loss." (2) In Diron v. Sadler, 5 Mees. and Welsby 414, Parke, J., (one of the most eminent authorities on matters of insurance) held, that if a voyage be such as to require a different complement of men, or a different state of equipment, in the several stages of the voyage, as if it were a voyage down a canal or river and thence across to the open sea, it would suffice if the vessel were properly manned and equipped for each stage of the navigation as it occurred. May Term, MCCLURE V. SECRIST. MCCLURE and Others v. SECRIST. Where one has entered into a special contract to perform work for another, and has done the work, but not in the time or manner stipulated by the contract, if the work done is accepted and used by the other party, the latter is answerable to the amount whereby he is benefited, upon an implied promise to pay for the value he has received. A., B., and C. were appointed by the board of commissioners a committee to contract for the erection of a county seminary on ground owned by the county. They accordingly entered into a special agreement in writing with D. to erect the building; and, describing themselves as such committee, stipulated to pay D. a certain amount of money for erecting it; and after its completion they accepted it on behalf of the commissioners, and reported to them the balance due D. for the work, &c. D. did not finish the work within the time stipulated. D. sued A., B., and C. in indebitatus assumpsit for the value of the work. Held, that the suit would not lie. APPEAL from the Grant Circuit Court. DAVISON, J.-Assumpsit by Secrist against the appellants, for work and labor. The declaration alleges, that on the first of November, 1851, the defendants were indebted to the plaintiff 4,000 dollars, for building a seminary-house in Marion, Grant county; and that being so indebted they promised to pay that sum, &c. Plea, the general issue. The Court tried the cause, and found for the plaintiff. Motion for a new trial overruled, and judgment on the finding of the Court. The facts of this case are these: At the June term, 1848, the board of commissioners of said county appointed the defendants a committee to contract with a suitable person to erect a seminary on the 1854. MCCLURE V. SECRIST. May Term, ground owned by said county for that purpose. Pursuant to their appointment, they entered into a special written contract with the plaintiff, whereby he agreed to build a seminary-house of specified dimensions, &c. And the defendants, describing themselves as a committee as above stated, in consideration therefor, stipulated to pay the plaintiff a certain amount of money. Under this agreement he commenced the work, but failed to complete the building within the period specified. During the progress of the work various payments were made to him on account of it by the treasurer of said county, out of seminary funds then in his hands. When the house was completed, the defendants accepted it on behalf of the commissioners, and thereupon reported to them the completion thereof, and also the balance due the plaintiff on account of the work. Upon his motion the commissioners made an order appointing an attorney to confess a judgment for the amount reported; and, in pursuance of that order, the plaintiff, at the October term, 1851, recovered a judgment in the Grant Circuit Court, for 1,797 dollars. The whole work, according to customary prices, was shown to be worth 4,000 dollars. Because the plaintiff was in default, having failed to complete his contract within the period stipulated, it is conceded that he can not sustain an action on the special agreement. He therefore relies upon a general count for work and labor. It is a settled principle that "where one has entered into a special contract to perform work for another, and has done work, but not in the time or manner stipulated by the agreement, still if the work done is accepted and used by the other party, the latter is answerable to the amount whereby he is benefited, upon an implied promise to pay for the value he has received." 7 Blackf. 599.-3 Ind. R. 59. But the rule just stated does not, in our opinion, apply to the case under consideration. There is nothing in the record that will justify the assumption that the appellants have derived benefit or received value from the work in 1854. DOE V. question. It is true they accepted the building; but that May Term, was done on behalf of the commissioners. The seminaryhouse, when completed, was corporate property; was erected for the use of the county, and belonged to it. To asTo as- ANDERSON. sume that its value was the property of the appellants, would involve an absurdity. Whether, if the building had been completed within the time specified, the appellants would have been liable on the written contract, is a question not presented by the record. Against them, however, no action can be maintained upon an implied assumpsit. But the appellee is not without remedy: the county of Grant is bound to pay him the full value derived from his work and labor. Indeed, the record shows that prior to the institution of this suit, he obtained a judgment against that county for the identical work now sued for. After that recovery, it seems to us, there was no ground upon which the present suit could be supported. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. D. Kilgore and J. Brownlee, for the appellants. J. M. Wallace and T. J. Sample, for the appellee. DOE on the demise of PLATTER and Others v. ANDerson. The R. S. 1843 required that the heirs of an intestate should, if residents of the A sale of the land of infant heirs, upon an administrator's petition under the It will not be presumed, in a collateral proceeding, that the Court had jurisdiction of the person of resident infant defendants, at the hearing of such a petition, where the adverse party has, in such proceeding, directly admitted the contrary. In a proceeding by an administrator, under the R. S. 1843, to sell land of an intestate, the record showed that the petition was filed in open Court, and that thereupon the guardian of the defendants, who were infants, and resiVOL. V.-3 May Term, 1854. DOE V. ANDERSON. Tuesday, May 23. dents of the county, appeared and "waived the necessity of notice" to them, &c.; whereupon the Court proceeded to order a sale, &c. Held, that the record disclosed that the Court had no jurisdiction of the defendants. ERROR to the Ripley Circuit Court. DAVISON, J.-This was ejectment for a tract of land in Ripley county. The Court tried the cause, and found for the defendant. Motion for a new trial overruled, and judgment upon the finding of the Court. The facts of this case, agreed on by the parties, are these: In the year 1839, Henry Platter died seized of the premises in controversy, leaving Peter, Sarah, Elizabeth, John, Jonathan, Mary, and Amanda Platter his children and heirs at law, who are the lessors of the plaintiff. At the November term, 1844, the administrator of said deceased appeared in the Probate Court of Ripley county, and filed his petition, representing the insufficiency of the assets then in his hands to pay the debts of the deceased, &c., and praying for an order to sell certain real estate therein described, being the same now in dispute. Thereupon one John A. Beall, the general guardian of said heirs, appeared to the suit. As to them, "he waived the necessity of notice," and answered the petition, alleging that he did not admit or deny the things therein charged. The Court then made an order directing the sale of the land. The administrator sold it to the defendant, and reported the sale thereof to the Court at the May term, 1845. The sale was confirmed; and the Court, at a subsequent term, appointed a commissioner to convey the land to the purchaser. A deed was accordingly made and delivered, and under it the defendant claims title to the premises. At the time of the commencement and pendency of the proceedings relative to said sale and conveyance, the plaintiff's lessors were minors and residents of Ripley county; but no process was issued on said petition; nor had they any notice whatever of the suit in which the order directing the sale of said land, was made; nor were they, or either of them, personally present in the Probate Court at the filing, or at any time during the pendency of the said petition. May Term, 1854. DOE V. The premises in question were sold under a statute which provided that "no order for such sale shall be made until notice of the petition, and of the time and place of hearing the same, shall have been given to the ANDERSON. heirs," &c., "interested in such estate;" that "such notice shall be served on them personally, if residents of the state, at least ten days before the time for hearing such petition;" and "if it shall appear," &c., "that any of the heirs,” &c., "are minors, the Court shall, before the hearing of such petition, appoint some suitable and discreet person the guardian of such minors, for the sole purpose of appearing for them and taking care of their interest in the said proceedings." R. S. 1843, p. 528 (1). The decedent's heirs, being residents, were, no doubt, entitled to personal notice of the petition and proceedings stated in the record, unless that requirement of the statute was superseded by the waiver of their guardian. We think he had no power to waive the service of notice. The statute was imperative, and plainly indicated a legislative intention that such service should not be omitted. The same act, by another section, provided that in all suits, &c., instituted under any of its provisions, in which infants might be defendants, they should appear by their guardian at law, or guardian ad litem appointed by the Court. R. S. 1843, p. 573. By this enactment the right of each guardian appears to be alike defined. Evidently the one appointed by the Court could not appear for minor defendants who had no notice of suit. Nor does any reason exist why the authority of the other should not be liable to the same construction. The statute which required personal service upon resident heirs is clear, direct and positive. Courts must adhere to the obvious meaning of the language used by the legislature. Therefore, it is needless to discuss its wisdom. But it may be said to be in conformity with a correct administration of justice that the law does recognize the right of infants to know something of what is doing or done in their affairs; that it affords them time and oppor |