Haynes v. Brown
| Decision Date | 28 November 1949 |
| Docket Number | 17848. |
| Citation | 88 N.E.2d 795,120 Ind.App. 184 |
| Parties | HAYNES v. BROWN et al. |
| Court | Indiana Appellate Court |
DeWitt Chappell, Evansville, Fenton, Steers Beasley & Klee, Indianapolis, James C. Jay, Indianapolis, for appellant.
Hatfield Meyer, Fine & Hatfield, Evansville, Frank H. Hatfield Evansville, Edward E. Meyer, Evansville, Isadore J. Fine Evansville, Joe S. Hatfield, Evansville, Charles H. Sparrenberger, Evansville, for appellees.
The appellant brought this action against the appellees to compel the specific performance of an alleged oral contract for the sale of all the capital stock of the B. & R. Realty Corporation and three city lots in the city of Evansville. At the close of appellant's case the trial court made a general finding in favor of the appellees, who offered no evidence.
The corporation owned lots one to five in a certain block, and the appellee, Alvin R. Brown, owned or controlled all the stock. He also had title to lots six, seven and eight in the same block, so that in practical effect the contract was one for the conveyance of lots one to eight, inclusive.
The appellant's case is based primarily on the first paragraph of his second amended complaint. The situation presented by that paragraph, and the evidence adduced in support thereof, is the one most favorable to appellant, and so, in the light of the conclusion we have reached, we confine ourselves to a discussion thereof.
The theory of appellant's case is that the parties made a complete oral agreement for the sale of the three lots and the corporate stock, it being further understood and agreed that the terms of the oral agreement should be later reduced to writing. He brings this action to enforce the oral contract, and contends the evidence discloses a written memorandum sufficient to satisfy the statute of frauds.
The appellant's witnesses testified, in substance, that the appellant and Alvin Brown had been negotiating relative to the subject matter of the sale for more than six months, and in December of 1945, the parties met with their attorneys in the office of Mr. Fine, attorney for the appellees; that the details of the transaction were there discussed and agreed upon item by item as they went along, and Mr. Fine and Mr. Waller, attorney for the appellant, made notes. A stenographer was then called in and the items were dictated to her in the presence of Haynes and Brown. Mr. Haynes testified that everything had been decided on; that they made a complete verbal agreement; and after the dictation both he and Haynes told Mr. Fine that everything in the contract was agreeable with them. The time for the delivery of abstracts of title was further agreed upon.
Mr. Haynes further testified that the contracts as later reduced to writing conformed to the oral agreement as made, and that Mr. Fine was to mail the contracts to Mr. Waller. Mr. Waller testified the contract was transcribed in accordance with the dictation. He further testified that Mr. Fine was to mail him the contracts as dictated.
A few days later Mr. Waller received three unsigned copies of the contract, attached to a letter of transmittal as follows: (letterhead omitted)
'December 7, 1945
'Mr. Richard Waller
'Attorney-at-law
'Citizens National Bank Building
'Evansville, Indiana
'Dear Dick:
'Very truly yours,
's/ Isadore J. Fine
's/ M. M.
Haynes signed the copies and they were returned to Mr. Fine. They were retained but never signed by the appellees. It was also testified that Mr. Fine never denied his signature to the letter and never denied sending the contracts to Mr. Waller.
In the view we take of the case, we are not called upon to decide whether Mr. Fine's letter and the attached unsigned copies of the contract together constituted a written memorandum sufficient to satisfy the statute of frauds. The appellant, who was plaintiff below and had the burden of proof, is confronted here with a finding against him. We are thus not only denied the right to weigh the evidence--we are also without authority to reverse unless the evidence, as construed most favorably to the appellees, entitled the appellant to relief. Pearson Co., Inc., v. Cohen et al., Ind.App. 1949, 83 N.E.2d 433, and cases therein cited.
The fact that all of the evidence at the trial was offered by the appellant is of no significance in determining its weight. Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905. The trier of the facts is not required to believe the testimony of every witness. Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018. On the other hand the trial court may not refuse to consider and weigh competent, uncontradicted evidence. Egbert v. Egbert, Ind.Sup., 1948, 80 N.E.2d 104. Among the factors entitled to consideration in determining the credibility of witnesses and the weight to be given their testimony, are the interest of the witness, if any, in the outcome of the trial; his bias and prejudice, if any are shown; his opportunity for knowing and recollecting the facts about which he testifies; the probability or improbability of his testimony; and his demeanor while on the witness stand. McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474. And even though an item of evidence is not expressly or directly denied or refuted, it does not necessarily stand as uncontradicted evidence, for the trier may disregard or disbelieve oral evidence if it is considered unreasonable or inconsistent with facts and circumstances shown by the other credible evidence in the case. Wright v. Peabody Coal Co., 1948, 225 Ind. 679, 77 N.E.2d 116.
Nor does a lack of contradiction or dispute in the evidence of itself make us the finders of...
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