Emrich Furniture Company v. Valinetz

• Decision Date: 18 May 1933
• Docket Number: 14,575
• Citation: 185 N.E. 654,96 Ind.App. 668
• Parties: EMRICH FURNITURE COMPANY v. VALINETZ
• Court: Indiana Appellate Court

185 N.E. 654

96 Ind.App. 668

EMRICH FURNITURE COMPANY v. VALINETZ

No. 14,575

Court of Appeals of Indiana

May 18, 1933

From Marion Municipal Court; Thomas E. Garvin, Judge.

Action by The Emrich Furniture Company against Arthur R. Valinetz in which defendant filed a set-off. From a judgment for defendant on his set-off, plaintiff appealed.

Reversed.

U. S Lesh, Richard L. Lowther and James E. Lesh, for appellant.

Charles D. Babcock, for appellee.

OPINION

SMITH, J.

Appellant brought this action against appellee in the Marion Municipal Court upon an open account for labor performed and material furnished in the refinishing of certain household furniture. The appellee answered by a general denial, and a second paragraph, denominated by him as a set-off; and asked for damages against appellant, and that such damages be set off against any judgment appellant might recover.

The case was tried by the court without a jury and a finding and judgment for the sum of $ 25.00 rendered for appellee upon the set-off against the appellant. Part of the finding is: The court "now finds for the defendant on the defendant's counterclaim, and for the defendant on the plaintiff's complaint, and that the defendant is entitled to recover of and from the plaintiff the sum of $ 25.00 together with the costs."

Appellant filed its motion for a new trial, the overruling of which is the only error relied upon for reversal, in which motion eight grounds are set out. The first and second are alike, as also are the third and fourth. The fifth, sixth, seventh and eighth attempt to raise questions of the admission and the rejection of certain testimony, but they present no question as neither the objections nor any offers to prove are set out in the motion. Thus the only grounds for new trial which are presented are: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law.

The complaint in this case is upon an open account, and charges that the appellee is indebted to appellant for labor performed and material furnished in the refinishing and re-covering of certain articles of household furniture in the principal amount of $ 165.68; it alleges that an itemized account is attached and made part of the complaint, which is long past due and has not been paid, and asks for interest thereon.

Appellee's set-off alleges that the appellant entered into a parol contract with the appellee whereby the former agreed to refinish a certain dining room suite and to re-cover seats of some chairs, and to fill in all indentations, crevices and depressions therein with a material similar to the unfinished wood so that said depressions and indentations would not be noticeable.

Then follows the averment that the appellant agreed to do this work and furnish these materials for the sum of $ 165.00. Appellee further alleges that appellant negligently and carelessly did this work and thereby the furniture...