Ecker v. Fuchs
| Decision Date | 05 June 1959 |
| Docket Number | No. 19003,No. 2,19003,2 |
| Citation | 129 Ind.App. 555,159 N.E.2d 134 |
| Parties | Joseph ECKER, Appellant, v. Andrew FUCHS, Appellee |
| Court | Indiana Appellate Court |
Benjamin Piser, Joseph Schmitt, Walter Rice, Taylor, Allen, Matthews & Gay, South Bend, for appellant.
William T. Oare and Thomas L. Murray, of Seebirt, Oare, Deahl & Thornburg, South Bend, for appellee.
Appellant and appellee were partners in the conduct of a tavern business. A dispute arose between them and appellee filed an action for dissolution of the partnership. While the dissolution proceeding was pending, the parties entered into a certain written agreement, the parts thereof, pertinent to the present inquiry, are now set forth:
'Agreement
'Witness this agreement between Andrew Fuchs and Joseph Ecker both of South Bend, Indiana, on this 26th day of May, 1955, all in consideration of the mutual promises and covenants hereinafter contained.
singular complaint against Ecker is based upon his occasional drinking of whiskey and that there is no dispute involving the integrity of the parties or any misconduct of said parties unrelated to events occurring in conjunction with said Ecker's imbibing said above referred to beverage. With such understanding, it is agreed as follows:
'(b) Fuchs shall, upon the exercise of said option, tender within said seven (7) days the book value of Ecker's interest in said partnership computed as follows:
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'(iii) The partnership books shall be adjusted to the date of taking said inventory in accordance with accepted accounting practice.
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'(v) Upon receipt of the adjusted evaluation of the worth of the partnership interest of Ecker and not later than three (3) days thereafter, Fuchs shall deposit with the First Bank and Trust Company of South Bend, South Bend, Indiana and with the trust officer thereof said amount of money in cash or the equivalent thereof including cashier's check, bank check or personal certified check.
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The evidence discloses and appellant admitted that on December 2, 1955, appellant 'did imbibe whisky upon the partnership premises and a disturbance occurred on said premises.' There is also evidence that at 11:30 P.M., on December 2, 1955, appellee was called at his home and informed that appellant 'was wrecking the bar', that appellee went down to the tavern and It also appears from the record that appellant at the aforesaid time attacked and assaulted a customer seated at a table with three others, and for such purpose undertook to wield a chair at such customer, whose eye was blackened, his glasses broken, and glass got into his eye. The assaulted customer said he had not been in the tavern since and would not stop there now if passing. Another customer said that he did not go to the tavern as frequently as before said occurrence.
Thereafter, on December 5, 1955, appellee gave written notice to appellant that by reason of his conduct, appellee 'does herein exercise his option granted by way of agreement executed on the 26th day of May, 1955' and that the inventory would be taken on December 11, 1955, in accordance with the contract.
Thereupon, appellant filed a complaint against appellee to resist the exercise of the option by appellee on the grounds that the 'basis for its exercise did not exist; and that the agreement was invalid as being ambiguous, impossible of performance and without valid consideration.' This complaint was dismissed. Appellee filed a counterclaim, afterward amended, for specific performance of the agreement and for other relief. The issue formed by this amended counterclaim and appellant's answer thereto was submitted to the court for trial, without jury. Pursuant to appellant's request, the court made special findings of fact and stated its conclusions of law thereon.
On such findings and conclusions the court rendered judgment providing for an inventory of the partnership business to ascertain the book value of appellant's interest in the partnership; the adjustment of the partnership books to the date of the inventory; that appellee deposit with a named bank the case determined to represent appellant's interest in the partnership to be paid to appellant upon his compliance with the decree; that appellant execute to appellee a Bill of Sale of his interest in the partnership; that appellant execute such documents as necessary to transfer to appellee the interest of appellant in the lease of the premises and in the Indiana alcoholic licenses and permits; and that appellant's interest in the partnership, assets, leases, permits, warrants and licenses shall cease and terminate one hour after the deposit of the money in the designated bank.
The appellant filed his motion for a new trial on the grounds that the decision is not sustained by sufficient evidence; that the decision is contrary to law; and that the court erred in overruling his motion for judgment at the conclusion of appellee's evidence. Appellant assigned as errors on appeal the overruling of the new trial motion, the overruling of his motion to modify the judgment, and that the court erred in its separately numbered conclusions of law.
Appellee has earnestly and consistently urged that appellant's brief failed to comply with the provisions of Rule 2-17(e), Rules of the Supreme Court, which requires the brief, under the heading 'Argument', to specify such of the assigned errors as are intended to be urged, and each cause in the motion for new trial intended to be urged and that 'After each assignment of error relied upon--except the ruling on a motion for a new trial, and after each cause for a new trial relied upon, there shall be concisely stated the basis of the objection to the ruling complained of, exhibiting clearly the points of fact and of law being presented, and how they are applicable, citing the authorities and statutes relied upon * * *.' Rule 17(f) provides that errors assigned and causes for a new trial not treated 'as herein directed', shall be deemed to be waived.
Appellee filed his motion to affirm the judgment appealed from because of the failure of appellant's brief to comply with said rule. Appellant then filed petition to amend the argument portion of his brief which was granted and appellee's said motion was denied. Appellant then filed his 'Amended Argument' and appellee filed his supplemental motion to affirm on the ground that said 'Amended Argument' also failed to comply with said rule. Appellee's said supplemental motion to affirm was then denied. Appellee thereafter filed two petitions for extension of time within which to file his brief, the last of which stated that his brief would be on the merits. Consequently, appellee waived his right to affirmance of the judgment because of any technical defects in appellant's brief. Biel, Inc. v. Kirsch, 1958, Ind.App., 153 N.E.2d 140, 142.
In Harrell v. Harrell, 1957, 127 Ind.App. 443, 142 N.E.2d 644, it was said that where the...
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...in the overruling of the demurrer to said clauses (a) and (b) of rhetorical paragraph five of the appellee's complaint. Ecker v. Fuchs, Ind.App.1959, 159 N.E.2d 134; Rule 2-17, Supreme The next assigned error that we consider is the overruling of the appellant's motion for a directed verdic......
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...473 . Crossley v. O'Brien, 24 Indiana 325, 87 Am.Dec. 329.' What this court recently stated in the case of Ecker v. Fuchs, 1959, Ind.App., 159 N.E.2d 134, at 139, 140, is apropos to the appellants' brief in the matter now before us wherein Judge Kelley, speaking for the court, 'It is clear ......