Bardsley v. Bardsley
| Decision Date | 14 January 1926 |
| Docket Number | 12,409 |
| Parties | BARDSLEY v. BARDSLEY |
| Court | Indiana Appellate Court |
Rehearing denied April 22, 1926.
Transfer denied December 8, 1926.
From Huntington Circuit Court; Sumner Kenner, Judge.
Action by William E. Bardsley against Ivia M. Bardsley. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Eberhart & Sapp and U. S. Lesh, for appellant.
Bowers Feightner & Bowers, for appellee.
Action by appellee against appellant to recover the alleged purchase price for various articles of personal property which it was charged appellant bid in at a public sale conducted by appellee.
The complaint was in two paragraphs. The first was based upon an account, an itemized statement of which was filed therewith. The second briefly charges that appellee was indebted to appellant for goods, wares, and merchandise sold and delivered to appellant in the sum stated in the complaint.
To the first paragraph, an answer in four paragraphs was filed, the first being a general denial. The second pleaded facts assuming to show that the property in question belonged to appellant.
The third paragraph, by way of cross-complaint, set up facts showing that the property in question belonged to appellant; that it was property raised upon appellant's farm or used in connection therewith and that it belonged to appellant; that she bid it in at the public sale pursuant to an agreement and understanding with appellee that the title thereto was to be thereafter determined in an action for divorce, which appellee had instituted against appellant and which was then pending, undisposed of, and that the title to said property had not at said time been determined.
The fourth paragraph, being by way of cross-complaint, contained averments similar to the third paragraph, in addition to which it set up facts showing that appellee was indebted to appellant for goods, wares and merchandise owned by appellant and taken by appellee and converted to his own use in a sum in excess of the demand in the complaint.
A reply in two paragraphs was filed to the second, third and fourth paragraphs of answer and cross-complaint, the first paragraph of which was general denial. The second paragraph averred that since the spring of 1920, appellant and appellee lived on the farm belonging to appellant, that theretofore said real estate on which said parties lived belonged to the father of appellant, and that appellee had rented the same and was paying a cash rental therefor, of $ 750 per year, and avers that prior to the spring of 1920, appellant did not have any interest therein.
That in the spring of 1920 appellant became the owner of said farm, but appellee denies that appellant is entitled to the proceeds thereof for the reason that appellee expended for the benefit of appellant for permanent improvements thereon and by advancing money to appellant to apply on the purchase price thereof and by the payment of taxes more than the annual rental value of said real estate. That, at the request of appellant, he advanced to her of his own money for purchase money, improvements, and taxes, a total of $ 3,375. That at the time appellee left said home, and at the time of the divorce action referred to by appellant, he left in the charge of appellant personal property and household goods which he had accumulated by his labors of the value of $ 1,395 an itemized statement of which is set out.
That, during the time appellee was farming said farm, he became indebted to various persons on account of expenditures made for the benefit of appellant and for the benefit of their children in the total sum of $ 1,830, which indebtedness was lawfully due and owing at the time of the application for divorce, an itemized statement of which is set out.
There was a trial by jury and a verdict rendered for appellee against appellant in the full amount of the demand contained in the complaint, to wit, $ 1,675, upon which judgment was rendered for appellee. The error assigned is the action of the court in overruling appellant's motion for a new trial.
It is undisputed that the sale of the goods, wares and merchandise involved in this action was for a price of more than $ 50 and appellant, contending that there was no act constituting a delivery of the goods, wares and merchandise to appellee, says that the contract of sale, though at public auction, was within the statute of frauds for the reason that no memorandum in writing of the sale was made. But appellant failed to present any question of this kind to the trial court. There was no objection to parol proof of the contract of sale nor was there any demurrer to the evidence at the close of the same. The question of the statute cannot be presented first in this court. It was waived by failing in any manner to present it in the trial court. Livesey v. Livesey (1868), 30 Ind. 398, 401; Sartwell v. Sowles (1900), 72 Vt. 270, 82 Am. St. 943, 48 A. 11; Arkansas Lumber, etc., Co. v. Benson (19...
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