Fox v. Cox
| Decision Date | 26 April 1898 |
| Docket Number | 2,446 |
| Citation | 50 N.E. 92,20 Ind.App. 61 |
| Parties | FOX ET AL. v. COX ET AL |
| Court | Indiana Appellate Court |
From the Parke Circuit Court.
Affirmed.
S. D Puett, John S. McFaddin, A. C. Ayres, A. Q. Jones and Caroline B. Hendricks, for appellants.
J. M Johns, for appellees.
Appellants brought suit in replevin for certain mill machinery, and for damages. Judgment was rendered in appellees' favor. Appellants' motion for a new trial was overruled, and this ruling is the only error assigned. A new trial was asked, because the decision was not sustained by sufficient evidence, was contrary to the evidence and the law, and because of the admission of certain evidence set out in the motion.
It is not claimed that there was a failure of proof upon any material issue in the case. We have carefully considered the evidence, and find there was some evidence upon which to base the finding. It has been so often held that the preponderance of the evidence is a question for the jury or trial court that the citation of authorities to that effect is unnecessary.
The fourth and sixth grounds for a new trial were, permitting two witnesses to testify as to the value of certain machinery. It is not necessary that a witness should be an expert before testifying in such a case. The extent of a witness' knowledge before being permitted to testify as to values is within the discretion of the trial court, and it is only where there is a total lack of such knowledge, or there is a palpable abuse of discretion, that the appellate tribunal will interfere. It is shown the witnesses had some knowledge of the subject-matter, and of the particular property. The record shows they were competent to testify, the weight of their testimony was for the court.
The extent of a witness' knowledge of the subject-matter about which he testifies as to values, goes to the weight of his testimony and not to its competency. See Smith v. Indianapolis, etc., R. R. Co., 80 Ind. 233; Terre Haute, etc., R. R. Co. v. Crawford, 100 Ind. 550; City of Lafayette v. Nagle, 113 Ind. 425, 15 N.E. 1.
A receipt that has none of the elements of a contract, may be explained or contradicted by parol evidence. It is only prima facie proof of the statements it contains, and is not conclusive. Ohio, etc., R. W. Co. v. Crumbo, 4 Ind.App. 456, 30 N.E. 434, and cases cited; Adams v. Davis, 109 Ind. 10, 9 N.E. 162; Scott v. Scott, 105 Ind. 584, 5 N.E. 397.
A receipt was in evidence to the effect that the property in suit was sold to one of the appellees on March 13, 1895, by one Ekelsberry. Appellants were claiming the property by purchase from the same party, at a subsequent date. What the parties said at the time of the...
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...796, (quoting Underhill's Criminal Evidence, 5th Ed., § 322). See State v. Hamar (1937), 211 Ind. 570, 199 N.E. 589; Fox v. Cox (1898), 20 Ind.App. 61, 50 N.E. 92; I.L.E. Evidence § 259 (1959). With regard to Carrier's valuation testimony we refer to the record. After relating the defects o......
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Tomchany v. Tomchany, 19600
...to render competent the testimony of this witness. A similar question was before this court in the case of Fox et al. v. Cox et al. (1898) 20 Ind.App. 61, 63, 50 N.E. 92, wherein we find this court made the following 'It is not necessary that a witness should be an expert before testifying ......