Bd. of Com. of Decatur Co. v. Greensburg Times , 215 Ind. 471 ( 1939 )

ON PETITION FOR REHEARING. Appellant has presented a petition for rehearing and a brief in which it is forcibly urged that the opinion of this court does violence to a section of the County Reform Act (ch. 154, § 33, Acts 1899, § 26-533 Burns 1933, § 5398 Baldwin's 1934), which provides:

"Hereafter the board of county commissioners, or any authority, shall have no power whatever to make any allowance for voluntary services, or for things voluntarily furnished, and no power to pay, or cause the same to be paid for, out of the county treasury . . ."

In support of its contention that appellee should be barred from recovering on account of the statute quoted, appellant says that the services rendered were voluntary, and cites section 115, chapter 5, of the Restatement of the Law of Restitution. Said chapter 5 is devoted to the subject of "Benefits Voluntarily Conferred," and section 115 to "Performance of Another's Duty to the Public." The rule is stated in said section as follows:

"A person who has performed the duty of another by supplying things or services, although acting without the other's knowledge or consent, is entitled to restitution from the other if

"(a) he acted unofficiously and with intent to charge therefor, and

"(b) the things or services supplied were immediately necessary to satisfy the requirements of public decency, health, or safety." (Our italics.)

The Restatements promulgated by The American Law Institute are entitled to great weight and we accept the rule quoted above as an authoritative exposition of the law on the subject 7, 9. considered, but it is not applicable to the case at bar. We are not presently concerned with benefits voluntarily conferred. The Reform Act expressly prohibits compensation for services so rendered to a county, and our former opinion does not infringe upon that statute. The rule of law which we deem applicable, and which we undertook to clearly state in the original opinion, is recognized and expressed in the Restatement series as follows:

"Quasi-contracts, unlike true contracts, are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice. Such obligations were ordinarily enforced at common law in the same form of action (assumpsit) that was appropriate to true contracts . . ." (Our italics.) Restatement of the Law of Contracts, ch. 1, § 5.

Appellee is not held to be entitled to recover upon the theory of services voluntarily rendered, but rather upon an obligation created by statute (ch. 96, Acts 1927, §§ 49-701 to 49-709 Burns 1933.)

Rehearing denied.

Tremain, C.J., not participating.