Crum v. Yundt

• Decision Date: 21 March 1895
• Citation: 40 N.E. 79,12 Ind.App. 308
• Parties: CRUM et al. v. YUNDT.
• Court: Indiana Appellate Court

12 Ind.App. 308

40 N.E. 79

CRUM et al.

v.YUNDT.

Appellate Court of Indiana.

March 21, 1895.

Appeal from circuit court, Clinton county; S. H. Doyal, Judge.

Action by David Yundt against Silas Crum and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Brumbaugh & Combs, for appellants. Martin A. Morrison, for appellee.

GAVIN, J.

The appellee sued appellants to recover upon an implied contract for a large amount of gravel taken by them from his land. The issues, so far as we are concerned with them, were founded on the fourth paragraph of the complaint, the answer of general denial, and a special answer limited to the claim for gravel removed from a highway adjacent to appellants' land, in which it was claimed that all the gravel was taken under a contract made between the parties, by the terms of which appellants were to open up a gravel pit partly within and partly without the line of the highway on appellee's land, and pay him 8 1/3 cents per yard for all that was taken from outside the line of the highway. A misjoinder of causes of action will not, under our statute, authorize a reversal. Carnahan v. Chenoweth, 1 Ind. App. 178, 27 N. E. 332; Rev. St. 1894, § 344; Rev. St. 1881, § 341. The counsel for the appellee having announced to the court and jury that he would offer no evidence except as to the fourth paragraph of the complaint, there was no error in the court's disregarding the issues made upon the others and submitting the cause upon that paragraph and the answers thereto. No reply to the special affirmative answer having been demanded by appellants, and trial having been had without one, they must, under settled rules of practice, be deemed to have waived the reply, and the cause will be treated as though the answer were denied. Young v. Gentis, 7 Ind. App. 199, 32 N. E. 796;Havens v. Gard, 131 Ind. 523, 31 N. E. 354;Buchanan v. Insurance Co., 96 Ind. 510.

There is serious doubt as to whether the instructions are in the record; but we have concluded to pass that question, and consider the merits of the principal propositions discussed under them, without, however, taking up the several instructions in detail. The facts disclosed by the evidence are about as follows: Appellants had a contract to construct a gravel road near appellee's land. They were informed by him that, if they could find any gravel on his land, they could open up a pit and take it out, as it would help pay his assessment. They afterwards opened a pit near the road, and opposite his land, which they extended across the highway, and then into his field, taking out about 1,400 yards from his land, including both that taken from within his fence and that from his half of the road. About the time they reached his fence, and were ready to enter the field, appellants' evidence is that they spoke to appellee concerning the terms on which they could have the gravel, and he agreed they could have that which they took from the highway for filling up the hole, and restoring the road across it, and should pay the customary price, or what they paid his neighbor, for that which came from within the field. They filled up the hole in the highway, made the roadway across the pit, and offered to pay the customary price for what they took from the field. Appellee, however, demanded pay for that taken from the highway as well. The only controversy relates to this latter part of the gravel. The controversy...