Cohen v. Reichman
| Decision Date | 26 June 1913 |
| Docket Number | No. 8,048.,8,048. |
| Citation | 55 Ind.App. 164,102 N.E. 284 |
| Parties | COHEN et al. v. REICHMAN et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Charles J. Orbison, Judge.
Action by Lee Reichman and others against Hyman Cohen and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Instruction No. 6, mentioned in the opinion, was that before defendants could reduce the amount of plaintiffs' claim, if the jury found that plaintiffs had established the material allegations of their complaint, defendants must show by a preponderance of all the evidence in the cause that, because of the failure and refusal by plaintiffs to perform the terms and conditions of the contract set out in defendants' cross-complaint, the defendants had been damaged in one or more specified particulars.
Instruction No. 7 was as follows: “The fact that defendants, prior to the bringing of this suit, had credit, and did buy goods on credit, and that, subsequent to the filing of said suit, said defendants did not have credit, and did not have goods shipped to them on credit, is not proof of the fact that said credit was injured or destroyed by virtue of said suit; but there must be direct evidence connecting the refusal of the credit with the bringing of the suit; and defendants must establish such connection by a preponderance of all the evidence given in the cause.”
Mitchel S. Meyberg and Berne B. Cohen, both of Indianapolis, for appellants. William A. Pickens, Linton A. Cox, and Earl R. Conder, all of Indianapolis, for appellees.
Appellees brought this suit against appellants on an account for goods, wares, and merchandise sold and delivered in the sum of $2,856.12.
The complaint was answered by a general denial, and the defendants also filed a pleading in the nature of a counterclaim denominated a cross-complaint, in which it is averred in substance that defendants (appellants) were, and for many years had been, engaged in the jewelry business in Indianapolis, Ind., and had bought large amounts of merchandise from wholesale houses on credit; that credit was essential to their business; that on the 2d day of September, 1909, plaintiffs (appellees) entered into a contract with defendants whereby the latter purchased merchandise to the amount of $2,856.12 on credit, and as a part of the contract of purchase, plaintiffs agreed that the amount should be charged as an open account for 10 months, and that at the expiration of that time they would accept as payment thereof defendants' note for said amount due on the 31st day of December, 1910; that defendants complied with their agreement, tendered said note, and plaintiffs refused to accept the same and abide by said contract, and demanded immediate payment of the account in cash; that in violation of said contract this suit was instituted on August 16, 1910, to collect said account; that by the failure of plaintiffs to comply with said agreement and by the institution of said suit defendants' business was greatly damaged, firms which previously gave them credit refused to ship goods to them except for cash on delivery, and others refused to sell to them at all; that they have been put to great expense in hiring a lawyer to defend said suit and have been damaged in their business and credit in the sum of $5,000.
To this pleading a general denial was filed. The cause was submitted to a jury for trial, and a verdict returned in favor of appellees for $2,979.88, and against appellants on the counterclaim. Appellants filed a motion for a new trial, which was overruled, and this appeal prayed and granted.
[1] The errors assigned are the overruling of a motion to suppress certain depositions and overruling the motion for a new trial. The first is not a proper assignment of error on appeal. It was, however, assigned as one of the grounds of the motion for a new trial, where it properly belongs. Louisville, etc., Co. v. Worrell, 44 Ind. App. 480-483, 86 N. E. 78.
A new trial was also asked for alleged error in giving to the jury instructions 6 and 7 and in excluding certain evidence.
[2] The motion to suppress the depositions was on the ground that “no notice was served upon the defendants of the taking of said depositions.” The motion was properly overruled, because the record shows that the motion was not made until after the cause was submitted to the jury for trial, which under the statute is too late for a motion of this kind. Section 455, Burns' 1908 Statutes.
[3] Furthermore, the transcript shows that appellants' attorney of record duly acknowledged service of notice of the taking of the deposition, which is of itself conclusive proof that the depositions should not have been suppressed for the reason assigned in the motion. Section 437, Burns' 1908 Statutes.
[4] In their briefs appellants argue the question that the proof of service of the notice was not duly made, but no such question was presented to the trial court by the motion to suppress or by the motion for a new trial.
[5] Errors occurring at the trial are not available on appeal, unless assigned as cause for a new trial and presented to the trial court for correction. Siberry v. State, 149 Ind. 684-690, 39 N. E. 936, 47 N. E. 458;Stephens v. Smith, 27 Ind. App. 507-509, 61 N. E. 745.
[6] Appellants argue objections to several instructions, but only instructions to which objections were made and which were assigned as causes for a new trial can be considered on appeal. Instructions 6 and 7 given by the court are the only ones presented for our consideration.
[7][8] Objection is urged to instruction 6 on the ground that it placed upon appellants a greater burden than the law warrants, by requiring them to prove “by a preponderance of all the evidence in the cause” the averments of their counterclaim. The same objection is also...
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