Doering v. Schneider, 10501.

• Decision Date: 07 December 1920
• Docket Number: No. 10501.,10501.
• Citation: 128 N.E. 936,74 Ind.App. 294
• Parties: DOERING v. SCHNEIDER.
• Court: Indiana Appellate Court

74 Ind.App. 294

128 N.E. 936

DOERING

v.SCHNEIDER.

No. 10501.

Appellate Court of Indiana, Division No. 1.

December 7, 1920.

Appeal from Circuit Court, Marshall County; Smith N. Stevens, Judge.

Action by John H. Doering against John Schneider. From a judgment for defendant, plaintiff appeals. Affirmed.

John W. Kitch, of Plymouth, and Charles Weidler and Miller Guy, both of South Bend, for appellant.

Adam E. Wise, of Plymouth, for appellee.

BATMAN, J.

This is an action in replevin, brought by appellant against appellee, to recover the possession of certain personal property, including an automobile, on which the former claimed to hold a chattel mortgage to secure a debt due him from the latter. The answer is in two paragraphs, consisting of a general denial, and an affirmative paragraph in which it is alleged that all of the indebtedness secured by said mortgage had been paid, except the sum of $23.42, which had been duly tendered to appellant and refused by him. It is further alleged therein that said sum was brought into court for appellant's benefit, for the purpose of making said tender good. A reply in general denial was filed to said second paragraph of answer. A trial by a jury resulted in a verdict in favor of appellee, upon which judgment was duly rendered. Appellant filed a motion for a new trial, which was overruled. This action of the court is the sole error assigned on appeal.

[1][2][3] The only reasons for a new trial, stated in appellant's motion therefor, are that the verdict is not sustained by sufficient evidence, and is contrary to law. Appellant admits that the evidence on the question of the amount due on the indebtedness secured by the mortgage is conflicting, and by reason of such fact expressly limits his brief to a consideration of the question relating to the alleged tender of the balance, which appellee concedes to be owing on said indebtedness. In this connection appellant has stated a number of abstract propositions of law, as to what is necessary to constitute a tender, and a waiver thereof, none of which we controvert. There is nothing in any of these propositions which prevents our holding that the verdict of the jury is sustained by the evidence. The evidence tends to show that appellee and Otto Legner went to appellant's place of business for the purpose of tendering him the sum of $23.71 in payment of the balance due on said indebtedness; that they found appellant sitting at his writing desk; that while there appellee had present, in the possession of said Legner, money sufficient to pay said balance; that said Legner, on behalf of appellee, offered appellant the sum of $23.71 in payment of the balance due on said indebtedness;that appellant, without making any objections to the kind of money offered, refused to accept the same because of the insufficiency of the amount, and declared that he would not surrender the note on payment of said sum. These facts, together with the reasonable inferences deducible therefrom, would sustain a finding that a tender was made, and it would likewise sustain a finding that a tender was waived. But appellant asserts that, inasmuch as appellee's affirmative paragraph of answer only alleges a tender, it cannot be sustained by proof of a waiver of tender, and therefore, if the evidence does not establish an actual tender, the answer is not sustained. In support of this contention he cites a number of decisions to the effect that a party must recover secundum allegatta et probata, or not at all. This rule, however, is not available to appellant under the circumstances of this case, as the briefs do not disclose that he made objections to any evidence bearing on the question of such waiver, or that he claims to have been in any wise misled or prejudiced thereby. Under these circumstances, this court, if necessary, will deem appellee's second paragraph of answer amended to conform to the evidence. Southern Ind. R. Co. v. Drennen (1909) 44 Ind. App. 14, 88 N. E. 724;Hawkins v. Thompson (1919) 122 N. E. 431.

[4] Appellant contends that, even if the court holds that the evidence shows a tender, still appellee was not entitled to recover, as there was no proof that appellee kept his tender good. In support of this contention, he asserts that the evidence shows that at times subsequent to the maturity of the note evidencing...