Bradley v. Phelps

• Decision Date: 06 August 1970
• Docket Number: No. 469A74,No. 1,469A74,1
• Citation: 147 Ind.App. 349,260 N.E.2d 894
• Parties: Goldie Conlin BRADLEY, Appellant, v. Merle PHELPS, doing business as Phelps Heating, Norman R. Conlin, Sharon R. Conlin, Appellees
• Court: Indiana Appellate Court

Page 894

260 N.E.2d 894

147 Ind.App. 349

Goldie Conlin BRADLEY, Appellant, v. Merle PHELPS, doing business as Phelps Heating, Norman R Conlin, Sharon R. Conlin, Appellees.

No. 469A74.

Appellate Court of Indiana, Division No. 1.

Aug. 6, 1970.

John D. Clouse, Evansville, for appellant.

Allyn & Knowles, Mount Vernon, for appellees.

CARSON, Judge.

This is an action commenced by plaintiff-appellee, Merle Phelps, doing business as Phelps Heating, agaisnt appellant Goldie Conlin Bradley and nominal appellees, Norman R. Conlin and Sharon Conlin, to recover the value of a furnace and the cost of installation of same.

Appellee-Phelps' complaint is framed in two paragraphs. The first paragraph seeks to foreclose on a mechanic's lien, but as the court found for appellant thereon, said first paragraph is not involved in this appeal. The pertinent allegations of appellee's second paragraph of complaint may be summarized as follows:

1. That appellee-Phelps is a sole proprietor doing business as Phelps Heating.

2. That appellant was the record owner of certain real estate in Posey County, Indiana.

3. That appellee-Norman R. Conlin occupied this real estate and claimed to own an interest therein.

4. That at the request of appellee-Norman R. Conlin, and with the consent of appellant, appellee-Phelps furnished and installed a furnace, the total value being $668.94, in a house situated on the abovementioned real estate.

5. That said amount remained unpaid, and a reasonable fee for appellee-Phelps' attorney is $100.

To appellee's second paragraph appellant filed an answer in two paragraphs, the first paragraph being an admission and denial under Rule 1--3, Rules of the Supreme Court of Indiana, which, in substance, appellant admitted ownership of land and denied all of the remaining allegations of said second paragraph. Such paragraph of appellant's answer is in the form of a set-off and alleges that the furnace installed by appellee-Phelps was defective.

Trial was to court, without jury, and subsequent thereto the court entered judgment in favor of appellee-Phelps on said second paragraph of complaint, which judgment reads as follows:

'Comes now the parties by their respective attorneys and this cause having been heretofore submitted to the court for trial on October 1, 1968, and the Court having heard the evidence and the arguments of counsel, whereupon the Court took the case under advisement, and now the court being advised in the premises finds against the plaintiff on the first paragraph of the complaint and finds for the plaintiff on the second paragraph of the complaint; that the defendants Goldie Conlin Bradley and Norman R. Conlin are jointly and severally indebted to the plaintiff in the principal sum of Six Hundred Sixty Dollars and Ninety-Four Cents ($660.94) to which interest should be added in the sum of Thirty Nine Dollars and Sixty-Five Cents ($39.65), making a total indebtedness of Seven Hundred Dollars and Fifty-Nine Cents ($700.59).

'IT IS, THEREFORE, CONSIDERED AND ADJUDGED by the Court that, on his first paragraph of complaint, the plaintiff take nothing, and that, on his second paragraph of complaint, the plaintiff recover of the defendants, or either of them, said sum of Seven Hundred Dollars and Fifty-Nine Cents ($700.59), together with his costs and damages herein laid out and expended.'

Appellant timely filed a motion for a new trial which sets out the following specification of errors:

'1. The decision of the Court is not sustained by sufficient evidence.

'2. The decision of the Court is contrary to law.

'3. Error in the assessment of the amount of recovery, in this, that the amount is too large.

'4. Error of law occurring at the trial, as follows:

'The Court erred in overruling the objection of the defendant Goldie Conlin Bradley, to the following question propounded by the plaintiff during the direct examination of Merle Phelps, a witness called on behalf of the plaintiff, and in admitting Exhibit No. 3 in evidence, which question, objection, ruling of the Court and Exhibit are in the following words:

"Q O.K. We still submit this.

"By MR. CLOUSE: To which the defendant Goldie Conlin Bradley objects for several reasons. First, there is now (no) showing that it is a business record which is entitled to be admitted into evidence. The testimony of the witness is that it is prepared specifically for this lawsuit. He does not have the original, that is understandable, he has a carbon copy which would be very interesting, particularly with reference to whom it was addressed to. This is not a business record that is admissible into evidence, having been prepared for this lawsuit. Secondly, I note that on three occasions this man testified, even this last time, that he prepared a statement for Norman Conlin. And he said again, when Mr. Allyn question him just a fes (few) minutes ago, that he gave it to Norman Conlin. That's a crucial matter as far as this defendant is concerned, to whom the bill was made. This is not to Norman Conlin. We object to the introduction of Plaintiff's Exhibit #3.

"BY THE COURT: Well, I think this might have some weight. I am going to order it introduced into evidence.'

                "PHELPS EX. #3                                     No.----------
                                 PHELPS HEATING
                     Sales-Heating and Sheet Metal-Service
                     Victor Oil Furnaces--Air Conditioners
                     North Main and Dereham Drive--Ph. 838-3752
                                           Mt. Vernon, Ind. 4760
                                                    Oct. 13, 1966
                                                    -------------
                M. Goldie Conlin
                ----------------              Duplicate Statement
                                              -------------------
                                  ARTICLE AND
                QUANTITY          DESCRIPTION              TAX       MERCHANDISE      LABOR
                  One     FGL--1252--2
                          Space Cond.  Gas Furnace                       295.00
                  One     Humidifier                                     22.44
                          Registers, galv. steel Pipe
                          and other Material                             51.50
                          Make duct and Install                                          300.00
                            Furnace
                                                                     --------------------------
                                                          TOTAL                        $ 668.94
                                                          /s/ John D. Clouse
                                                              -----------------------------
                                                              Attorney for Defendant
                                                              Goldie Conlin Bradley"
                

Appellant's sole assignment of error is the overruling of her motion for a new trial.

The third specification of error in appellant's motion for a new trial presents no question for our consideration in that it is not supported by cogent argument and, therefore, is deemed waived under the provisions of Rule 2--17(h) ¹, Rules of the Supreme Court of Indiana. Mays v. Wadel (1968), Ind.App., 236 N.E.2d 180, 14 Ind.Dec. 178.

Appellant has chosen to group the first two specifications of error and supports same by argument under one heading in her brief.

Appellant, in the argument portion of her brief, urges several possible theories in support of the contention that the decision is not sustained by sufficient evidence and is...