Theo. Losche & Sons v. Chas. Williams & Associates
| Decision Date | 05 April 1948 |
| Docket Number | 17683. |
| Citation | 78 N.E.2d 447,118 Ind.App. 392 |
| Court | Indiana Appellate Court |
| Parties | THEO. LOSCHE & SONS, Inc. v. CHAS. WILLIAMS & ASSOCIATES, Limited. |
Bernard Stroyman, of Indianapolis, for appellant.
Joseph & Dann, of Indianapolis, for appellee.
This is an appeal from a judgment rendered in an action on account by appellee to recover the sum of $1,480.05 for two carloads of bananas. Issues were joined on appellant's answer to paragraph III of appellee's complaint, and appellee's answer to appellant's amended cross complaint. The prayer of this cross-complaint asked that the sum of $2,461.51 be set off against any sum found due appellee on its complaint. The set-off was claimed for alleged loss suffered by appellant on two other carloads of bananas, allegedly caused by the breach of an agreement with one Carlos Betancourt, Jr., who was alleged to be an agent of appellee in such sale.
The cause was submitted to the court for trial, without a jury and the court found for appellee on its complaint and rendered judgment for appellee in the sum of $1,480.05, and rendered judgment that appellant take nothing on its amended cross complaint. The court overruled a motion for a new trial filed by appellant and this appeal followed.
The sole error assigned in this court for reversal is the action of the trial court in overruling appellant's motion for a new trial. Grounds of appellant's motion for a new trial were that the decision of the court is not sustained by sufficient evidence and is contrary to law. By its propositions, points, and authorities, appellant does not question the action of the trial court in rendering judgment on appellee's complaint, but challenges the action of the trial court in denying relief to appellant on its amended cross complaint. Accordingly, the issue is limited to the questions presented by the action of the court in denying relief to appellant on its amended cross complaint.
It is well settled that where one party carries the burden of proof as the appellant did herein on a cross complaint, where the judgment is against the party so carrying the burden of proof, an assignment in the motion for a new trial that the decision is not sustained by sufficient evidence is inappropriate to present any question upon appeal for the reason that a negative verdict or decision may not be attacked upon the ground that there is lack of evidence to support it. Wilson, Adm'x, v. Rollings, 1938 214 Ind. 155, 14 N.E.2d 905; McKee v. Mutual Life Ins Co. of New York 1943, 222 Ind. 10, 51 N.E.2d 474; Rowe v. Johnson 1945, 223 Ind. 289, 60 N.E.2d 529; Smith, Executrix, v. Strock, Executor, 1945, 115 Ind.App. 518, 60 N.E.2d 157; Myers v. Brane, 1944, 115 Ind.App. 144, 57 N.E.2d 594; Scoopmire v. Taflinger, 1944, 114 Ind.App. 419, 52 N.E.2d 728; Easton v. Board of Commissioners' Ind.App.1947, 75 N.E.2d 169.
Therefore, the question remaining for our determination is whether the decision and finding of the trial court that the appellant take nothing on its cross complaint was contrary to law. In determining this proposition, we must consider the evidence most favorable to the appellee, together with any reasonable inferences which may be drawn therefrom. Rowe v. Johnson, supra; Craig, Ex'x, v. Citizens Trust Co., 1940, 217 Ind. 434, 26 N.E.2d 1006.
It is only where the evidence is without conflict and leads inescapably to but one reasonable conclusion, and the trial court has reached a contrary conclusion, that the verdict or decision will be set aside on the ground that it is contrary to law. Rowe v. Johnson, supra; Clapham v. City of Huntington, 1941, 109 Ind.App. 244, 32 N.E.2d 118.
Appellant's amended cross complaint claimed a breach of an agreement between appellant and one Carlos...
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