Gwinnup v. Shies
| Decision Date | 10 December 1903 |
| Docket Number | 20,242 |
| Citation | 69 N.E. 158,161 Ind. 500 |
| Parties | Gwinnup v. Shies |
| Court | Indiana Supreme Court |
From Superior Court of Madison County; H. C. Ryan, Judge.
Action by Amos C. Gwinnup against John Shies. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
Alfred Ellison and W. S. Ellis, for appellant.
E. D Reardon, for appellee.
Appellant furnished the material and constructed a cement yard walk and steps for appellee, and brings this suit to recover therefor. In his first paragraph of complaint he counts on a special contract, and demands the stipulated price. In the second paragraph he sues for the quantum meruit. Answer the general denial. Trial by the court, and finding and judgment for the defendant.
But one question is reserved for our decision and that is, is the finding of the court under the issues contrary to law?
The defense relied upon was the failure of appellant to execute the work in a workmanlike manner as the contract required. There is in the record sufficient evidence of defective levels and grade of the walk, and of defective form and finish of the steps, to support the court in its finding, but appellant insists that it was improperly received under the general denial. In this we think appellant is mistaken. The record discloses that the defendant's evidence touching the quality of the work done was given without a single exception being reserved that we have been able to discover and our attention has not been directed to any; but, assuming that appellant has the right to raise the question, it must be decided against him.
Any defense which goes to a denial that the cause of action set forth in the complaint exists may be properly pleaded by way of general denial. 1 Works' Prac., § 579.
The rule prevailing in this State is clearly stated in Jeffersonville Water Sup. Co. v. Riter, 146 Ind. 521, 526, 45 N.E. 697, thus: "A defendant, under the general denial, is not confined to negative proof in denial of the facts stated in the complaint, as a cause of action, but may, upon the trial, introduce proof of facts independent of those alleged in the complaint but which are inconsistent therewith, and tend to meet and break down or defeat the plaintiff's cause of action."
There was no evidence offered by either party as to the value of the work, as it was performed, but appellant insists that the evidence shows it was of some value for which he should have recovered, and in support of his claim cites Everroad v. Schwartzkopf, 123 Ind. 35, 23 N.E. 969, and ...
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