Dygert v. Dygert

• Decision Date: 05 January 1892
• Docket Number: 425
• Citation: 29 N.E. 490,4 Ind.App. 276
• Parties: DYGERT v. DYGERT
• Court: Indiana Appellate Court

29 N.E. 490

4 Ind.App. 276

DYGERT v. DYGERT

No. 425

Court of Appeals of Indiana

January 5, 1892

Petition for a rehearing overruled March 19, 1892.

From the Steuben Circuit Court.

Judgment affirmed.

J. A Woodhull and W. M. Brown, for appellant.

W. G Croxton, F. S. Roby and F. M. Powers, for appellee.

OPINION

NEW, J.

This action is by the appellee against the appellant. The complaint is in two paragraphs, the first of which is upon an account to recover $ 500 for a one-half interest in a tile mill alleged to have been sold by the appellee to the appellant.

The second paragraph of the complaint, stripped of a superabundance of words, avers that in 1887 the appellee sold to the appellant a one-half interest in a certain tile mill and its business, in consideration of the payment by the appellant of $ 500 and the performance of other engagements to wit: The appellant was to personally manage said business and share equally with the appellee in the profits arising therefrom, and was to pay a certain note theretofore given by one Adelbert Dygert to one Jurgenson secured by a mortgage on said manufactory; that the appellant, under said agreement, took full control of said mill and business, but did not operate the same properly, but suffered the same to be idle, whereby it became unproductive and unprofitable, to the loss and damage of the appellee in the sum of $ 500; that said note was purchased by one Jeremiah Dygert, the appellee's son, who, thereafter, under the conditions of the mortgage securing the same, took said mill into his own possession, and, with the appellant, has ever since been operating the same at a great profit; that, because of the failure of the appellant to pay said note, as he had agreed with the appellee to do, said mortgage has been foreclosed by said Jeremiah Dygert--the note amounting to $ 337.83--and such proceedings had that the appellee thereby has lost her one-half interest in said mill, her interest being of the value of $ 500; that by reason of the appellant's failure to comply with his agreement, the appellee has been damaged to the amount of $ 1,200, for which she demands judgment.

The appellant's answer to the complaint contains three paragraphs; the first a general denial, and the second a plea of payment.

The substance of the third paragraph is as follows: At the September term, 1889, of the Steuben Circuit Court, Jeremiah Dygert brought an action against the appellee, the appellant and Adelbert Dygert to foreclose the mortgage named in the complaint. In said action the appellee filed a cross-complaint against the appellant and Jeremiah Dygert, averring that she had sold to the appellant a one-half interest in said mortgaged property, and that, in consideration thereof, the appellant agreed to pay and satisfy said mortgage, and to run said mill and share equally with the appellee in the profits thereof; that the appellant had failed to satisfy said mortgage, and had not carried on said business as he had agreed to do, but had allowed said property to remain idle and unproductive, to the damage of the appellee in the sum of $ 300; that the cause of action in said cross-complaint is the same as that stated in the appellee's present complaint; that the appellant filed his separate answer to said cross-complaint, in which he admitted the purchase from the appellee of a one-half interest in said mill, but denied all other allegations therein contained; that upon the issues so made upon said cross-complaint the appellee, upon the trial, introduced evidence to prove that the appellant when he purchased said one-half interest agreed to pay therefor, and also assumed and agreed to pay said mortgage; that said trial resulted in a finding and judgment against the appellee on her cross-complaint, and that said judgment is in full force and unappealed from.

A reply of general denial was filed to the second and third paragraphs of the answer, and upon the issues thus formed the cause was submitted for trial to a jury, who returned a verdict for the appellee in the sum of $ 450. The appellant moved for a new trial, which motion, upon the appellee remitting $ 200 of said sum, was overruled, and judgment rendered for $ 250 in favor of the appellee.

The only error assigned by the appellant is the overruling of his motion for a new trial, and the only ground for a new trial discussed is that the verdict is not sustained by sufficient evidence.

The contention of appellant's counsel is that the third paragraph of the answer, which is a plea of former adjudication, is fully established by the evidence, and that therefore the jury should have found for the appellant.

The appellee in her complaint in the case at bar seeks to recover a personal judgment against the appellant for damages, because the latter had failed to do and perform the things he had promised as the consideration for the sale to him of a one-half interest in the tile mill.

The cross complaint referred to in the third paragraph of the answer we have carefully examined, as we find...