137 N.E. 566 (Ind.App. 1922), 11,396, Spencer v. Treanor

Docket Nº:11,396
Citation:137 N.E. 566, 79 Ind.App. 178
Opinion Judge:ENLOE, J.
Party Name:SPENCER v. TREANOR
Attorney:Gaylor & Sills, for appellant. E. B. Sellers, for appellee.
Case Date:December 21, 1922
Court:Court of Appeals of Indiana
 
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Page 566

137 N.E. 566 (Ind.App. 1922)

79 Ind.App. 178

SPENCER

v.

TREANOR

No. 11,396

Court of Appeals of Indiana

December 21, 1922

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.

[79 Ind.App. 179] 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

Page 567

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...

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