Diether v. The Ferguson Lumber Company
| Decision Date | 28 November 1893 |
| Docket Number | 790 |
| Citation | 35 N.E. 843,9 Ind.App. 173 |
| Parties | DIETHER ET AL. v. THE FERGUSON LUMBER COMPANY |
| Court | Indiana Appellate Court |
Reported at: 9 Ind.App. 173 at 178.
From the De Kalb Circuit Court.
Judgment affirmed, at costs of appellants.
T. E Ellison, for appellants.
T. R Marshall, W. F. McNagney 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 $ 426.97.
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 two in the deposition of one Fump, 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 ninety 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 any where 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. [See opinion on petition modified.]
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 Fump 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 that the record fails to disclose that the invoice was read in evidence.
Counsel for appellants complains of the admission of the price-list of their stock issued by appellee, who were engaged in business at Little Rock, Arkansas, in August, 1890, a copy of which it was claimed had been sent to appellants at their place of business in Fort 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 price of the lumber, and, therefore, it was proper to show whether the lumber was scarce or plentiful, as tending to affect its market value.
On the trial, appellee called one of appellants to the stand, as a witness in its behalf. On cross-examination, appellants showed by...
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Deither v. Ferguson Lumber Co.
... ... 28, 1893 ... 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, ... ...