On Petition for Rehearing.
Per Curiam.Appellee has petitioned for a rehearing in this appeal on the grounds that the court erred (1) in holding that there was evidence in the case on a material issue, on the weight and credibility of which appellant had the right to demand the judgment of the jury; (2) in holding that it was essential to show that the original proposition or contract which appears to have been entered of record by the board of commissioners on June 15, 1902, was in fact spread of record at that time; (3) in holding that the provisions of §7853 Burns 1901, §5766 R. S. 1881, are applicable and controlling; (4) in holding that the contract entered into on June 6, 1902, should have been entered of record before the parties proceeded to act thereon.
8. In support of their contention counsel for appellee refer us to the decision of this court in Weatherhogg v. Board, etc. (1902), 158 Ind. 14, to show that by the holding therein §7853, supra, is not apphcable to cases of the char*606acter of the one at bar. They insist, therefore, that the evidence given by the witness in question to show that the contract under which Eleener & Hunter were employed by the county to perform the stipulated services was not spread of record on June 15,1902, was not material, for the reason, as advanced, that the board of commissioners, in making the contract in question, was not required to conform to the provisions of the statute in controversy. In this contention' we do not concur. If the case at bar could be said to belong to a class of cases of the character of Weatherhogg v. Board, etc., supra, Hoffman v. Board, etc. (1884), 96 Ind. 84, Board, etc., v. Mitchell (1892), 131 Ind. 370, 15 L. R. A. 520, the insistence of counsel would be correct. While, in cases of the character of those last cited, it would certainly be better and more orderly for the board of commissioners, in entering into a contract with a person to perform such services for the county, to enter of record its action as taken in the matter, and also the contract relative thereto, nevertheless, there is no statutory requirement that a finding of indispensable public necessity should be entered of record, or that the contract of employment should be spread upon the records of the board in order to render the employment binding on the county. McCabe v. Board, etc. (1874), 46 Ind. 380; Board, etc., v. Ritter (1883), 90 Ind. 362. Of course, such contract of employment is now subject to the provisions of the county reform law (§5594el Burns 1901, Acts 1899, p. 343, §25).
In the former appeal of this cause (Garrigus v. Board, etc. [1901], 157 Ind. 103) this court said: “We hold that §39, supra [§7853, supra], is valid, and that it was in force when the agreement with Fleener & Hunter was made; but even if we are in error in this, it will be found that this court has accorded to the county board very full powers to enter into contracts for the benefit of the property of the county, and that these powers were amply sufficient for the purposes of the agreement with Fleener & Hunter. §5745 *607R. S. 1881, §7830 Burns 1894; Hoffman v. Board, etc. [1884], 96 Ind. 84; Board, etc., v. Mitchell [1892], 131 Ind. 370.” See, also, Duncan v. Board, etc. (1885), 101 Ind. 403.
By the provisions of §7853, supra, it is evident that the legislature intended to prohibit boards of commissioners from doing three particular things, unless they substantially complied with the requirements of said section: (1) Erom making any allowance “not specifically required by law to any county auditor, clerk, sheriff, assessor or treasurer, either directly or indirectly, or to any clerk, deputy, bailiff, or any employe of such officer.” (2) Erom employing “any person to perform any duty required by law of any officer.” By the words “any duty required by law- of any officer” the legislature manifestly intended such current duties exacted by law of an incumbent officer, and not neglected duties which should have been performed by his predecessor in office, for, in the absence of any statutory requirement, it is not the duty of an incumbent official to discharge duties which devolved upon his predecessor. Garrigus v. Board, etc., supra. (3) Erom employing any person to perform any duty or service to be paid by a commission or a percentage. The section in question closes with the following provisions: “If it be found necessary, and so entered of record, to employ any person to render any service as contemplated in this section, as a public necessity, the contract for such employment shall be spread of record in said court, and, for such services rendered, the claimant shall file his account in said court ten days before the beginning of the term, and any taxpayer shall have the right to contest the claim.”
In Weatherhogg v. Board, etc., supra, this court in construing the prohibition of §7853, supra, against the board of commissioners entering into contracts for the performance of services to be paid by commission or percentage, held that it was only applicable to employments which per-*608tamed to or affected the duties of public officers, and had no application to contracts by a board of commissioners employing a person to render services for the county, where such services were wholly disconnected with official duties. See, further, Garrigus v. Board, etc., supra, on page 109 of the opinion.
It will be observed that by the contract between the Board and Fleener & Hunter, the latter, for their services in making an examination of the public records, settlement sheets, vouchers, etc., in the various offices of the county for the purpose of ascertaining whether any money was due to the latter, were to be paid a percentage of fifty per cent.; or, in other words, one-half of the amount of money which they might collect for the county. It is certainly evident that under the circumstances the case at bar falls clearly within the prohibition of the statute against commission and percentage contracts. Therefore, in order to bind the county, the board in making the contract was at least required substantially to comply with the provisions of the statute.
The case of Weatherhogg v. Board, etc., supra, under the facts, is clearly distinguishable from the case now under review. In that case the services to be rendered under the contract therein between the board and one Grindle, an architect, were the preparation by the latter of plans and specifications for the building of a court-house, and superintending the construction thereof. It is true that the compensation to be paid for the services rendered by such architect was a certain fixed percentage of the cost of the courthouse ; but it was held in that appeal, and properly so, that such services did not come within the meaning of the statute, and hence were not subject to its prohibition.
We are constrained to hold that, by reason of the percentage which the board in this case agreed to pay Fleener & Hunter for their stipulated services, the case falls clearly and fully within the inhibition of the statute, and the board *609in entering into the agreement or contract in question was required to comply with the requirements of §7853, supra, in order to bind the county. It follows from this view that the evidence of the witness in controversy was material, and the weight thereof was a matter to be submitted to the decision of the jury. If the compensation which the board agreed to pay Eleener & Hunter for the work to be performed had been other than a percentage or commission, a different question would be presented in this appeal.
9. It is true that the evidence in controversy may, in the main, be said to be of a negative character, and possibly the learned trial judge may have considered it of such little weight that it did not tend to rebut the evidence given by the plaintiff, and that therefore he was justified in directing a verdict. But the rule that positive testimony is of greater weight than negative can not be'permitted to conflict with the general rule that the weight of negative as well as that of positive testimony must be submitted to the decision of the jury. 3 Jones, Evidence, §901; 1 Wharton, Evidence (3d ed.), §415; Starkie, Evidence (8th Am. ed.), 762, 763,
After a further consideration we are satisfied that the holding at the former hearing that the trial court erred in directing a verdict for plaintiff was correct. The petition for rehearing is, therefore, overruled.