Deither v. Ferguson Lumber Co.
| Decision Date | 28 November 1893 |
| Parties | DEITHER et al. v. FERGUSON LUMBER CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, De Kalb county; S. A. Powers, Judge.
Action by the Ferguson Lumber Company against Louis Deither and others to recover the value of certain lumber. From a judgment for plaintiff, defendants appeal. Affirmed.
T. E. Ellison, for appellants. Marshall & McNagny and D. A. Garwood, for appellee.
This action was brought by appellee against appellants in the superior court of Allen county, to recover the value of a car of lumber which, as alleged, was sold and delivered by appellee to appellants on September 27, 1890. The venue was changed to the De Kalb circuit court, where, as the result of a trial by jury, verdict was returned, and judgment was rendered against appellants for $426.98. The only error assigned in this court is that the court erred in overruling appellants' motion for a new trial.
The first question argued is that the trial court erred in overruling the motion of appellants to strike out part of the answer to question 2 in the deposition of one Trump, a witness in behalf of appellee. The record discloses that the cause was tried in January, 1892, and that, at an ensuing term in June, the motion for a new trial was overruled, and appellants were granted 90 days in which to file a bill of exceptions. On the 30th day of August, 1892, a general bill of exceptions was filed, which contains the motion to strike out that was filed and overruled in the preceding January. It does not appear anywhere in the record that any time was asked or granted in which to file bill of exceptions during the term at which the motion was overruled. As this ruling preceded the trial, and no time having been granted in which to file a bill of exceptions, the motion could not be carried into the record by a general bill of exceptions filed pursuant to leave granted at a subsequent term of the court. In any event, the objections made to the answer, as shown in the record, are not well taken, and therefore there was no error in this ruling.
What we have said also disposes of the question raised as to the ruling to strike out parts of the deposition of W. B. Ferguson. On the trial, counsel for appellants moved to strike out a part of the answer of the witness Trump to the question hereinbefore referred to, “for the reason that it is incompetent.” This objection was too general to raise any question. The trial court was not required to find some theory for excluding the evidence.
The objections urged to the invoice offered in evidence by appellee are not well taken, for the reason the record fails to disclose that the invoice was read in evidence.
Counsel for appellants complain of the admission of the price list of their stock issued by appellee, who was engaged in business at Little Rock, Ark., in August, 1890, a copy of which, it was claimed, had been sent to appellants at their place of business in Ft. Wayne, prior to the sale in September of said year. The controversy in this case was the price or value of the lumber, the place where such price or value should be determined, and the quality of the lumber. So far as the question of quality is concerned, the record indicates that the jury made a deduction in the full amount of damages which appellants claim to have sustained. The appellee contended that it sold the lumber sued for according to the terms set forth in the price list of such material, and that the prices therein were the market prices of such material at the place where the sale was made. As there was testimony tending to show that appellants received this price list before they ordered the lumber, it was competent to introduce the same in evidence, as tending to show the terms of the contract. Nothing was said in the order in regard to the...
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