Bedford Belt Ry. Co. v. Burke

• Court: Indiana Appellate Court
• Writing for the Court: GAVIN
• Citation: Bedford Belt Ry. Co. v. Burke, 13 Ind.App. 35, 41 N.E. 70 (Ind. App. 1895)
• Decision Date: 13 June 1895
• Parties: BEDFORD BELT RY. CO. v. BURKE.

13 Ind.App. 35

41 N.E. 70

BEDFORD BELT RY. CO.

v.BURKE.

Appellate Court of Indiana.

June 13, 1895.

Appeal from circuit court, Lawrence county; R. W. Miers, Judge.

Action by Michael C. Burke against the Bedford Belt Railway Company to recover for work performed and material furnished. From a judgment for plaintiff, defendant appeals. Affirmed.

F. M. Trissal and Watson & Giles, for appellant. Brooks & Brooks, for appellee.

GAVIN, J.

The special findings of facts are as follows:

“(1) That under a contract with the defendant, plaintiff performed work and furnished material for defendant amounting at the contract price to the sum of $906.39. (2) That the plaintiff executed a receipt to the defendant on the 20th day of April, 1893, for $579.50, and on July 1, 1893, executed a receipt to the defendant for the balance of said work,-the sum of $326.69.” “(4) No money was paid to plaintiff by defendant at the time of the execution of either of said receipts. (5) I find that the first receipt, for $579.80, was signed in the office of the auditor of said defendant, and was taken by the plaintiff, and delivered to W. C. Winstandley, secretary and treasurer of said defendant. That said Winstandley was also the president of the Bedford Bank, doing a general banking business in the city of Bedford. Plaintiff had an account with said bank, and had to his credit on said 20th day of April, 1893, the sum of $451.07. That plaintiff, on said 20th day of April, 1893, drew on his check from said bank the sum of $332.50, which sum he used in the payment of his laborers on the work which was represented by this amount in said receipt, but received nothing from defendant on said receipt on said day. (6) On the next day-April 21st-plaintiff was credited on the books of said bank with the amount of said receipt, to wit, $579.50. (7) Said credit and application was made by said Winstandley and bank without the consent or knowledge of plaintiff. (8) That after the 20th day of April, 1893, plaintiff drew checks which were paid by said bank as follows: April 29th, $50; April 25th, $75; April 22d, $10.80; April 25th, $15; April 26th, $5; April 27th, $29.28; April 29th, $50; May 6th, $50; May 9th, $25; May 16th, $2.90; May 18th, $6.95; May 19th, $5; May 25th, $6.95; May 27th, $99.11. Plaintiff made a deposit in said bank on May 27, 1893, of $100. (9) The bank book of the plaintiff was not in his possession from January, 1893, to the time of this trial. The same was not balanced until after the transactions herein set out; and his said checks canceled have never been returned to him. (10) The second receipt, for $326.89, was executed and delivered to defendant, and defendant afterwards, at various times, paid to different parties sums in the aggregate to the amount of said receipt, and on debts for which plaintiff was liable. Robert W. Miers, Judge.”

“I find as a conclusion of law that there is due the plaintiff from the defendant $297.18. Robert W. Miers, Judge.”

The only issue tendered by appellant upon which a defense is based was payment. Keeping in mind the settled rule that the special finding, when reasonably and fairly construed, must disclose all the facts essential to appellant's recovery either by...