Dissent
Jackson, J.I would deny transfer herein.
The majority opinion and the Appellate Court opinion adequately set forth the issues involved and hence a full scale review thereof in this dissent would only serve to uselessly encumber the record.
The statute on which appellant relies for recovery reads as follows:
“The officials of any city, both elected and appointed, and the employees of any city, who perform services for the city, other than governmental, which services are connected with the operation of any municipally owned utility or function, may, within the discretion of the mayor and subject to the approval of the common council, receive additional compensation for the performance of such services: Provided, That the amount of such additional compensation shall be determined and fixed by the administrative authority in control of the operation of such utility or function, subject to the approval of the mayor and the common council; Provided further, That any additional compensation so authorized shall be paid from the revenue derived from the operation of such utility or function.” (Emphasis supplied). Acts 1959, ch. 107, § 8, p. 217, § 48-1233b, Burns’ 1963 Replacement.
As I read the above statute there is no requirement that the name of the person performing the additional services, for which additional compensation is claimed, be named in the resolution. Only the amount of the compensation need be determined by the board. It appears that the requirement of the statute has been met by plaintiff’s Fourth Amended Complaint, to which is attached a copy of the resolution.
The majority opinion relies on Slack v. Grigsby (1951), 229 Ind. 335, 97 N. E. 2d 145, but the opinion fails to state the entire rule therein set forth as follows:
*679“When the allegations in a pleading vary from the provisions of the instrument tipon which it is founded, the exhibit itself is controlling and must be looked to rather than to the allegations made concerning it.” (Emphasis supplied) .
Consequently the cited case is not controlling.
In the case at bar the appellant seeks to recover under the statute (Acts 1959, ch. 107, § 8, p. 217, § 48-1233b, Burns’ 1963 Replacement, supra) rather than ex contractu or in quantum meruit. Appellant’s position is that the statute provides for payment of services other than governmental. The resolution recognizes that compensation for services, other than governmental, for services as attorney rendered the municipal utility in the issuance and sale of its revenue bonds should be paid in the sum of $10,300.00. The statute, not the resolution, is the foundation of the action. It is true the resolution does not specifically state the appellant was to receive the attorney fees provided therein, but neither does it exclude him from receiving them as it does not specify any particular recipient.
The pertinent portion of the resolution relative to bond counsel reads as follows:
“WHEREAS, the firm of Ross, McCord, Ice & Miller of Indianapolis, Indiana, attorneys at law, have been employed by this Board to act as bond counsel in connection with the issuance of said bonds, and said bond counsel have prepared for consideration by this board and the Common Council suggested forms for the bond ordinance and rate ordinance based upon data furnished by Ernest R. Hamilton Associates. . . .”
Thus, the wording of the resolution does not provide for the employment of the above mentioned firm as counsel for the City to the exclusion of appellant. The majority opinion admits “. . . the resolution ... is silent as to the nature and purpose of the attorney fees set forth therein and names no recipient for those fees; . . .”
On the facts pleaded and the record before us it appears *680that a hearing on the merits must be had to determine whether or not the appellant is entitled to recover; therefore, the judgment of the trial court sustaining the demurrer to the Fourth Amended Complaint was error necessitating reversal and remand as required by the Appellate Court opinion and transfer should be denied.
Note. — Reported in 221 N. E. 2d 350.