Brodt v. Duthie

• Decision Date: 20 September 1933
• Docket Number: No. 14395.,14395.
• Citation: 97 Ind.App. 692,186 N.E. 893
• Court: Indiana Appellate Court
• Parties: BRODT v. DUTHIE et al.

97 Ind.App. 692

186 N.E. 893

BRODT

v.DUTHIE et al.

No. 14395.

Appellate Court of Indiana, in Banc.

Sept. 20, 1933.

Appeal from Superior Court, Marion County; Linn D. Hay, Judge.

Action by Frank E. Brodt against William E. Duthie and another. A cross-complaint filed by the defendant William E. Duthie was dismissed after the verdict. From a judgment in favor of the defendants. The plaintiff appeals.

Affirmed.McTurnan & Higgins, of Indianapolis, for appellant.

Alvah J. Rucker, James A. Collins, and B. Howard Caughran, all of Indianapolis, for appellees.

SMITH, Judge.

Appellant brought this action in the court below against appellees on two paragraphs of complaint for damages to recover money advanced and profits lost on account of appellees' failure to perform a certain contract for the manufacture of cigar and cigarette lighters. Both paragraphs were substantially the same, and charged that appellant entered into a written contract with appellees, whereby appellee William E. Duthie agreed to manufacture for appellant 10,000 cigar lighters for the price of 20¢ each; that William E. Duthie was to make punches, dies, and form tools for said lighters for $375; that 60 per cent. of the price of these tools was to be paid in advance by appellant and the balance when tools were completed, and sample lighter made from said tools and submitted to appellant; that appellant advanced to appellee William E. Duthie the sum of $1,000 as part payment on the tools and order for the lighters; that the tools were to be used on the lighters made for and ordered by appellant; that the appellees failed and refused to deliver said lighters, except 800 of them in the value of $160; that the punches, dies, and tools which were to be made by appellant, and used in the manufacture of appellant's articles, were used for other purposes by the appellees; that because appellees failed to perform their contract within a reasonable time, appellant lost profits of resale from said lighters in the sum of $3,000, and was damaged in the sum of $5,000.

To these paragraphs of complaint, the appellee Neva W. Duthie filed a general denial; and the appellee William E. Duthie filed an answer in five paragraphs: (1) General denial; (2) that the article ordered to be manufactured for plaintiff was an infringement on a patent owned by another, and that by reason thereof the appellee William E. Duthie could not proceed with the contract; (3) no consideration; (4) payment; (5) that the appellant failed to pay for the making of said tools and dies and that on account thereof, and of the other acts and conduct of appellant, appellee William E. Duthie was prevented from carrying out terms of said contract; that appellant interfered with the morale and efficiency of the factory and the workers therein to such an extent that some quit their work; that the article sought to be made for appellant was an infringement of a patent, of which infringement appellee William E. Duthie did not know, and was unable to get certain parts; that by reason of the breaches of said contract the appellee William E. Duthie was unable to perform the contract solely because of such acts and unlawful conduct on the part of appellant.

A cross-complaint was filed by appellant William E. Duthie, but was dismissed after the verdict, and hence will not be discussed further.

The jury was directed by the court to return a verdict for appellee Neva W. Duthie. Afterward, the jury found for appellee William E. Duthie.

The appellant seasonably filed his motion for a new trial, containing twelve grounds therefor, which was overruled by the court. Judgment was rendered against appellant, that he take nothing, and for the costs of the action.

From this judgment appellant appealed to this court; the only error assigned being the overruling of the motion for new trial. The only questions presented under the motion for new trial, and not waived are: (1) The error of the court in giving instructions 1 to 15, inclusive; (2) the error of the court in giving an instruction not numbered; (9) that the verdict of the jury is not sustained by sufficient evidence; (10) that the verdict of the jury is contrary to law. Except for grounds 11 and 12, which are the same as 9 and 10, supra, the rest of the grounds recited in the motion for new trial relate to the refusal to admit certain testimony.

[1] On the question of rejection of certain testimony, no question is presented by the motion for new trial, as no objections, or the substance thereof, or any offers to prove are set forth therein.

We are met at the threshold of this cause with numerous objections to the record, and to the form of the brief. Appellees attempt to raise numerous questions, such as the lack of notice; no prayer of appellant for an appeal to the Appellate Court; that neither bill of exceptions No. 1, containing the evidence, nor No. 2, containing the instructions, is in the record, for the reason that no time was given for the filing thereof, and that they were never tendered or presented to the court or to the judge, but that each merely states that it was presented or tendered without stating to whom; that the record fails to show whether bill of exceptions No. 2 on the instructions is the original or copy; that the præcipe does not ask the clerk to certify bill of exceptions No. 2 containing instructions; that no question is presented as to the giving of instructions for the reason that the evidence is not in the record; that the order of the trial court in granting an extension to appellant for the filing of his bill of exceptions upon the evidence is void due to failure of the application to show that the inability of the court reporter to transcribe said evidence in time was not caused by the negligence of appellant; and questions challengingthe sufficiency of the brief of appellant as to compliance with rule No. 22.

There are numerous other objections and criticisms in appellees' brief similar to those enumerated above. It would unduly extend this opinion, and is unnecessary, to set them out herein.

[2] On January 30, 1932, the appellees filed their verified petition, or motion, asking leave to file their answer brief herein, setting up in said verified motion a statement of the record; that appellant was granted additional time to October 30, 1931, in which to file his brief; and that appellant's brief was filed on said day. This verified motion further shows that appellees' time for the filing of their brief had expired, and that more than 60 days had elapsed after the time in which appellees should have filed their brief; that they had a good and meritorious defense against the assignment of errors; that they desired to present their brief in opposition to appellant's contention, and that appellees' brief would be on the merits of the cause, and all motions to dismiss and dilatory motions in the cause in behalf of appellees had been filed; that the date on which the time for filing appellees' brief had expired was November 29, 1931. Appellees' motion was granted and permission given to file their briefs in this cause upon the showing made in said motion. Since appellees were granted permission to file their brief after the time allowed by the rules of the court upon their statement that the brief would be upon the merits of the cause, it seems to us they ought to be held thereto. These questions above referred to cannot be said to be upon the merits of the cause. Appellees having been granted permission to file their brief after the time therefor had expired, and without having applied for any extension of time therefor, they ought not be permitted to raise questions that are not upon the merits, which, if sustained, would cause a decision to be rendered in their favor upon technicalities, especially since they have stated to the court in a verified motion, as an inducement for such privilege, that their brief will be upon the merits of the cause.

[3] It cannot be contended that the questions above referred to as raised by appellees are upon the merits of the cause.

“The word ‘merits' should be understood as meaning the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself,...