On Petition foe a Reheaeing.
Elliott, J.— In the argument on the petition for a rehearing, counsel, without questioning the soundness of the *386decision heretofore announced, insist that we should decide some technical questions presented by them. The first question which they ask us to decide was thus presented in their original brief:
“ The first assignment we submit does not present any question for decision, as the record shows that when the demurrer was sustained to the answer, the appellant took leave to amend; and afterward the appellant filed an amended answer. By filing an amended answer, the appellant waived any error there might have been in sustaining a demurrer to the answer. Busk. Prac., p. 286; Thompson v. Toohey, 71 Ind. 296. If this were not true, still there is no question here, as the answer is not in the record.”
We looked into the record and found that there was an answer on file; that the ruling on the demurrer to it was exhibited not only by the ordinary record entries, but also by a: bill of exceptions, and we supposed it impossible for any one to doubt that the assignment of errors pointed to the ruling on the only answer in the record. As there is but one answer in the record, we think it plain that the assignment fully and unmistakably informed court and counsel of the ruling which appellant asserted to be erroneous. The answer, as amended, was the sole answer in the record, and it was perfectly proper to denominate it “ the answer of the appellant.”
The next point made by counsel was presented in these words: “ There is no averment in the amended answer that the county did not receive and use the articles. There is no averment that they were useless or unnecessary. There is no averment that the price charged was unreasonable. For amended answer see record.”
This is not such a presentation of a question as the settled rules of practice require, for there is nothing more than a mere assertion unsupported by argument or authority. Nothing more is said than that certain averments are not in the answer; no attempt is made to show that they ought to have been in it. Granting, however, that there is a sufficient brief. *387and conceding that the questions sought to be presented are Avell presented, and it is obvious that there is no strength in the position. If the acts of the county officers faere, as the answer avers, in defiance of a positive statute, then there could be no liability on the part of the county, no matter Avhat the county officers may have done.
■ The averments of the answer arc that the articles named in the complaint “ Avere purchased by Jesse L. Henry and not by the defendant, nor by order of the commissioners, or with their knowledge or consent,” and that they never agreed to pay for them; that when the goods were purchased there was in force a contract made by the commissioners for furnishing books and stationery for the county, and, to copy the language of the answer: “ That after making said contract and while the same was still in.force, the said Jesse L. Henry, without notifying the defendants, and without their knowledge or consent and without any authority whatever, made the purchase of the goods, books, stationery and articles named and specified in the complaint, of and from the plaintiffs, in violation of the said contract herein set forth; and that the plaintiff at the time of the sale of the goods named in the complaint had full notice of the contract and order of commissioners so made for the purchase of said books, stationery and other articles so made Avith the Sentinel Company, and the plaiiitiff was one of the unsuccessful bidders for said contract.”
We do not see Iioav any one can seriously entertain the opinion that the ansAver does not meet the whole complaint; it certainly does go to all the articles named in that pleading.
It is, hoAvever, said that the contract which is referred to as an exhibit does not cover all the time embraced in the complaint, but the obvious answer to this is that it is a AArell knoAvn rule that written instruments are not proper parts of the pleading Avhcn. they are merely collateral, and can not control the averments in the body of the pleading. It is' only proper to set forth the instrument on Avhich the plead*388ing is founded, and when this is the case then its recitals have controlling force. In the present instance, the contract was not the foundation of the defence.
Counsel say that the complaint shows that part of their claim was for goods furnished from December 30th, 1880, to March, 1881, and that as the contract was for one year from December 30th, 1879, the whole of their claim- is not covered. The extract made from the answer shows that the contract was in force when all the goods sued for were furnished ; but suppose it lacked this statement, there would still be no confession of the truth of the allegations of time in the complaint, for allegations of time and value are not, as a general rule, material, and are not therefore confessed by a failure to deny them. R. S. 1881, section 383.
It is also contended that the answer ought to have gone further and shown that commissioners obeyed the statute with exact strictness in the matter of giving notice and the like. We do not see how the appellee can claim any right to attack the proceedings of the commissioners, when he is shown to have had full knowledge of the existence of the contract, and to have been a competing bidder at the letting. But whether he is or is not in a position to make the point is not important, for until he affirmatively shows that the commissioners have violated the law the presumption is in favor of the regularity and legality of their acts, as everybody knows.
We do not think the statute is one to be strictly and rigorously construed; on the contrary, we think it a just one, deserving a liberal construction. A check upon the authority of county officers to buy stationery and supplies at their pleasure is far from an invasion of common right, and it is but reasonable that contracts for furnishing county stationery and supplies should be let to the best bidder ascertained by fair and open competition. But as there is no contract legitimately in the record, we need not enter further into the discussion of the statute.
We have thus discussed all the points made by counsel, and *389it does seem to us that they are so unimportant as to fully justify our course in not discussing them in our former opinion.
Filed Feb. 1, 1884.Petition overruled.