Abrams v. Silver

• Decision Date: 20 April 1936
• Docket Number: 14844.
• Citation: 1 N.E.2d 286,102 Ind.App. 97
• Parties: ABRAMS v. SILVER et al.
• Court: Indiana Appellate Court

1 N.E.2d 286

102 Ind.App. 97

ABRAMS v. SILVER et al.

No. 14844.

Appellate Court of Indiana, in Banc.

April 20, 1936

Appeal from Superior Court, St. Joseph County; J. Elmer Peak, Judge.

Action by Alfred R. Abrams against Sol S. Silver and May T. Barnum. From a judgment in favor of May T. Barnum, plaintiff appeals.

Affirmed.

Joseph A. Hogan and Seymour Weisberger, both of South Bend, for appellant.

Sol S Silver, Vern C. Hastings and Graham, Crane & Elliott, of South Bend, for appellees.

CURTIS, Chief Judge.

This was an action brought in the St. Joseph superior court by appellant, Alfred R. Abrams, seeking a judgment for $1,700 against Sol S. Silver and May T. Barnum, appellees, and praying that the amount be declared a lien against the real estate owned by appellee May T. Barnum, and that said lien be foreclosed.

The cause was tried by the court without a jury on the appellant's amended complaint and an answer in general denial thereto. The court found for the appellant against appellee Sol S. Silver in the sum of $1,913.68, for which amount judgment was rendered. The court also found that appellant take nothing by his complaint against appellee May T. Barnum, and judgment was so rendered in favor of appellee May T. Barnum.

The appellant filed his motion for a new trial, which was overruled, and this appeal was then prayed and perfected; the only error assigned being the ruling of the court upon the said motion. The causes or grounds assigned under the said motion are that: " (1) The finding of the court is not sustained by sufficient evidence. (2) The finding of the court is contrary to law."

On September 24, 1929, May T. Barnum, the owner of a building in South Bend, Ind., entered into a contract with the appellee Sol S. Silver for a lease for five years, the first floor to be used for a jewelry store, the second floor to be sublet for office or residence purposes. The lease contained the following clause: " The tenant is hereby granted the right, and agrees, to change the front of the premises herein mentioned, subject to the approval of the owner, which approval is hereby granted, to be paid for by the tenant." Silver, desiring to remodel the front of the building, entered into a contract with the appellant, Alfred R. Abrams. In this contract Abrams specifically reserved his right to file a mechanic's lien. The remodelling cost amounted to the sum of $1,662, for which the appellant accepted notes from Silver, payable each month in the sum of $100, except that the last note was for the balance, to wit $62. Silver on October 15, 1929, made an assignment of the lease to Abrams as security for the payment of said notes and this assignment was consented to by the owner, May T. Barnum. Silver fell behind in his payments, and Abrams brought this action.

It is needless to say that, if there is competent evidence or if legitimate inferences can be drawn from such evidence to sustain the decision of the court, this court will not weigh the evidence and substitute its judgment for the judgment of the...