Gwinnup v. Shies

Citation161 Ind. 500, 69 N.E. 158
Case DateDecember 10, 1903
CourtSupreme Court of Indiana

161 Ind. 500
69 N.E. 158

GWINNUP
v.
SHIES.

Supreme Court of Indiana.

Dec. 10, 1903.


Appeal from Superior Court, 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 Burns' Rev. St. 1901, § 1337u. Affirmed.


Ellison & Ellis, for appellant. E. D. Reardon, for appellee.

HADLEY, J.

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. Works, Pr. § 579. The rule prevailing in this state is clearly stated in Jeffersonville, etc., Co. v. Riter, 146 Ind. 526, 45 N. E. 699, 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...

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15 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...not be inferred from the fact that the defendant permitted the sidewalk to remain and made use of it without objection. (Gwinnup v. Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church ......
  • Nordin Const. Co. v. City of Nome, Nos. 1290
    • United States
    • Supreme Court of Alaska (US)
    • October 1, 1971
    ...(architect); Scholz v. Schneck's Estate, 174 Ind. 186, 91 N.E. 730 (1910) (contract to help defendant buy a railroad); Gwinnup v. Shies, 161 Ind. 500, 69 N.E. 158 (1903) (contract to construct a cement walk, result of no value); Keys v. Garben, 149 Iowa 394, 128 N.W. 337 (1910) (contract to......
  • Moss v. Mills, (No. 492.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...Eight Co., 186 Mass. 449, 71 N. E. 983; Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455; Smith v. Clark, 58 Mo. 145; Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158; Mayer Ice Machine Co. v. Van Voorhis, 88 N. J. Law, 7, 95 A. 735. This means that the work shall be done in an ordinarily skillful m......
  • Mug v. Ostendorf, No. 7,340.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 13, 1911
    ...defense and admissible under the general denial. Indianapolis St. Ry. Co. v. Robinsin, 157 Ind. 414, 416, 61 N. E. 936;Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158;Ind. Trust Co. v. Finitzer, 160 Ind. 647, 67 N. E. 520;Blizzard v. Applegate, 61 Ind. 368. In support of the rule as above decl......
  • Request a trial to view additional results
15 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...not be inferred from the fact that the defendant permitted the sidewalk to remain and made use of it without objection. (Gwinnup v. Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church ......
  • Nordin Const. Co. v. City of Nome, Nos. 1290
    • United States
    • Supreme Court of Alaska (US)
    • October 1, 1971
    ...(architect); Scholz v. Schneck's Estate, 174 Ind. 186, 91 N.E. 730 (1910) (contract to help defendant buy a railroad); Gwinnup v. Shies, 161 Ind. 500, 69 N.E. 158 (1903) (contract to construct a cement walk, result of no value); Keys v. Garben, 149 Iowa 394, 128 N.W. 337 (1910) (contract to......
  • Moss v. Mills, (No. 492.)
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 9, 1925
    ...Eight Co., 186 Mass. 449, 71 N. E. 983; Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455; Smith v. Clark, 58 Mo. 145; Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158; Mayer Ice Machine Co. v. Van Voorhis, 88 N. J. Law, 7, 95 A. 735. This means that the work shall be done in an ordinarily skillful m......
  • Mug v. Ostendorf, No. 7,340.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 13, 1911
    ...defense and admissible under the general denial. Indianapolis St. Ry. Co. v. Robinsin, 157 Ind. 414, 416, 61 N. E. 936;Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158;Ind. Trust Co. v. Finitzer, 160 Ind. 647, 67 N. E. 520;Blizzard v. Applegate, 61 Ind. 368. In support of the rule as above decl......
  • Request a trial to view additional results

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