Decatur-Kocher Lumber, Inc. v. Ehrsam, DECATUR-KOCHER
| Decision Date | 13 October 1964 |
| Docket Number | No. 2,No. 19993,DECATUR-KOCHER,19993,2 |
| Citation | 201 N.E.2d 568,136 Ind.App. 397 |
| Parties | LUMBER, INC., an indiana corporation, Appellant, v. Lawrence W. EHRSAM, Esther L. Ehrsam, Appellees |
| Court | Indiana Appellate Court |
[136 INDAPP 397] Custer & Smith, D. Burdette Custer, Robert G. Smith, Decatur, for appellant.
Robert S. Anderson, Decatur, for appellees.
[136 INDAPP 398] MOTE, Judge.
Appellant brought an action in the trial court against appellees, husband and wife, on an alleged oral contract of agency, for the balance allegedly due for the construction of a residence on real estate owned by said appellees.
The complaint alleged that appellant is the successor to Kocher Lumber and Coal Company by virtue of a merger of said company, which actually supervised the construction of and furnished the material for said residence, and Decatur Lumber Company, Inc. The complaint, as amended by interlineation, further alleged that it was orally understood between the parties that appellant's predecessor was to serve as agent for the appellees, engage carpenters, plasterers and building contractors, to perform required labor and/or furnish required material for said construction, to pay on behalf of appellees therefor, after which appellees would reimburse appellant's predecessor. The complaint further set forth various items of disbursements aggregating a balance of Three Thousand, Nine Hundred Sixty-Four Dollars and Fifty Cents ($3,964.50), paid by appellant's predecessor in behalf of appellees, and sought recovery therefor, together with interest thereon.
The appellees filed an Answer in Two Paragraphs, one under Rule 1-3, by which they alleged that they were without information as to affirmative rhetorical paragraphs of the said complaint, and two, that on the 19th day of October, 1959, said defendants paid in full the claim and demand sued upon, and attached to said paragraph of answer a copy of a purported receipt from said Kocher Lumber and Coal Company in the amount of Four Thousand, Three Hundred Eighty-Four Dollars and Thirty-Five Cents [136 INDAPP 399] ($4,384.35) and marked 'Pd. in full.' Appellant filed a Reply in General Denial.
The cause was submitted to the trial court without the intervention of a jury on the issues thus formed, after which the trial court made a finding in behalf of appellees and rendered judgment accordingly. Although the trial court made what may be considered as a 'special' finding of facts, inasmuch as such special finding was not sought by either party, prior to the commencement of the trial, the same must be considered as a general finding. Mueller v. Mueller et al. (1948), 118 Ind.App. 274, 78 N.E.2d 667; Jaggers et ux. v. Henderson et ux. (1953), 123 Ind.App. 325, 110 N.E.2d 341; Huber et al. v. Huber et al. (1960), 131 Ind.App. 96, 164 N.E.2d 651.
Appellant filed a Motion for New Trial in which it is asserted that the decision of the court is not sustained by sufficient evidence; the decision of the court is contrary to law; and certain errors occurring at the trial. The assignment of errors filed by appellant in this court is based upon the overruling of said Motion for a New Trial.
The assertions by the parties in this appeal with respect to the required condensed recital of the evidence are such that we have deemed it proper, and even necessary for a complete understanding of this appeal, to search the record in an attempt to glean therefrom the import of such evidence; and in doing so we at once have been faced with the legal proposition of long standing which requires the complainant, appellant in this instance, to provide substantial evidence to prove the material allegations of the complaint so that it fairly may be [136 INDAPP 400] concluded that a prima facie cause has been established, thus requiring the defendants, appellees in this instance, to proceed with and meet, as well as overcome by a preponderance of the evidence, such established or prima facie cause of action. The principles of law thus enunciated are so well established that they need no citation of authorities.
As we have reviewed the record and analyzed the same, we are forced to the conclusion that appellant has not met its lawful responsibility and requirement to prove the material allegations of its complaint through the introduction of evidence, and to extablish a prima facie case. It will be noted that appellant attempted, in a manner which apparently was not satisfactory to the trial court, in pursuance of a so-called oral agency agreement, to prove (1) the payment of certain monies for labor and, (2) the providing of certain materials for the construction of the residence. Our investigation does not disclose that there was any evidence tending to show that the expenditures made and such...
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...substantial evidence to prove the material allegations of their complaint for injunctive relief. Decatur-Kocher Lumber, Inc. v. Ehrsam, 136 Ind.App. 397, 399, 201 N.E.2d 568, 569 (1964). Plaintiffs are required to prove each element of their claims. Cerra v. McClanahan, 141 Ind. App. 469, 4......
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...incumbent upon Scott Pools to demonstrate that it was entitled to the recovery it sought. 3 Decatur-K ocher Lumber, Inc. v. Ehrsam (1964) 136 Ind.App. 397, 399, 201 N.E.2d 568, 569. As to the parents, Robert and Elizabeth, Scott Pools failed to do so. The ju dgment, as to Robert and Elizabe......