Spencer v. Treanor

Decision Date21 December 1922
Docket Number11,396
PartiesSPENCER v. TREANOR
CourtIndiana Appellate Court

From White Circuit Court; Benjamin F. Carr, Judge.

Action by Julia A. Treanor against Stanton T. Spencer. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Gaylor & Sills, for appellant.

E. B Sellers, for appellee.

OPINION

ENLOE J.

This action was begun by the appellee against the appellant to recover for corn sold and delivered by appellee to appellant.

The complaint was in two paragraphs, in the first of which appellee sought a judgment for the reasonable value of the corn sold; and in the second she sought to recover upon an alleged special contract.

The issues being closed the cause was submitted to the court for trial, with a request that the court make a special finding of the facts and state its conclusions of law thereon. The court made its finding of facts and stated its conclusions of law thereon favorable to appellee, and rendered judgment accordingly. Appellant duly excepted to the conclusions of law, and also filed his motion for a new trial, stating as reasons therefor that, the decision of the court was not sustained by sufficient evidence, and was contrary to law. This motion being overruled he prosecutes this appeal. The only alleged error now presented for our consideration is as to the court's conclusion of law upon the facts found.

The contention of the appellant, as stated by counsel in their brief filed herein is, that, "as the findings show that the corn in question was sold under a special contract, the plaintiff is not entitled to recover the reasonable value thereof under an implied contract." As an abstract proposition of law, the proposition thus contended for is undoubtedly true, but the question which we have to consider is whether it is applicable to the facts as found by the court in the case.

The finding of the court, so far as the same relates to the alleged special contract is as follows,--(3) "That on July 12, 1919, the plaintiff was the owner of 525 bushels and 20 pounds of ear corn of the crop of 1918, and the same was in cribs on a farm belonging to plaintiff lying north and east of the town of Wolcott, in White County, Indiana, and on said above date, the plaintiff and defendant entered into an oral agreement by the terms of which the plaintiff sold to the defendant said 525 bushels and 20 pounds of corn; that the price to be paid for said corn was not then fixed, but that it was agreed by said parties that plaintiff would thereafter fix and determine upon a specific date and that the market price of that date should be the selling price for said 525 bushels and 20 pounds of corn; and that the defendant should take possession of said corn at his own convenience."

There was a further finding that the appellant removed said corn from the cribs where it was stored, between July 12, 1919, and August 17, 1919, and fed the same to his live stock.

The court further found,--"that at no time has the plaintiff fixed a day when the market price should govern as to the contract price for the corn mentioned in finding No. 3 hereof, except, that on August 25, 1919, she, by post card sent to the defendant, attempted to fix the price of the corn mentioned in finding No. 3 hereof, at $ 1.90 per bushel, the same being the market price of said corn on August 1, 1919. The court finds that said postal card was mailed on August 25, 1919, was signed by the plaintiff, was addressed to the defendant at Wolcott, Indiana, and was received by him in the regular and usual course of the delivery of mail at the Wolcott post office, and that said postal card is in the words and figures following, to-wit,--

Remington, Aug. 25, 1919.

Dear Sir: You can call my corn sold the day you gave me the $ 500. I have been away from home till yesterday hunting land. Have you it all hauled yet? Hope you are all O. K.

I remain yours truly,

Mrs. J. A. Treavor."

There was also a finding that the $ 500 above mentioned was paid to appellee by appellant on August 1, 1919. There was also a further...

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