Higman v. Hood
| Citation | 29 N.E. 1141,3 Ind.App. 456 |
| Decision Date | 02 February 1892 |
| Docket Number | 334 |
| Parties | HIGMAN v. HOOD ET AL |
| Court | Indiana Appellate Court |
From the Henry Circuit Court.
Judgment affirmed, with costs.
J Brown, W. A. Brown and W. H. Hickman, for appellant.
M. E Forkner and W. O. Barnard, for appellees.
The appellant commenced this action against the appellees for commission alleged to be owing him from the appellees upon a sale of real estate owned by the appellees in the city of Muncie, Indiana, made by the appellant as the agent of the appellees. The complaint is in two paragraphs. The first paragraph was upon a written contract executed by the appellees to a firm of real estate agents in the city of Muncie, of which firm the appellant was the successor, and as such became the owner of said contract, which was filed with and made a part of the complaint.
The second paragraph was for services rendered as a real estate agent for the appellees at their special instance and request.
The answer was general denial. There was a trial by a jury resulting in a verdict for the appellees. Appellant moved for a new trial, which was overruled and exception taken. Judgment was rendered upon the verdict.
The only error assigned is the alleged error of the court in overruling the motion for a new trial.
The evidence is in the record. Before proceeding to determine the questions presented by the motion for a new trial, it is proper to say that the appellant failed to introduce any evidence to sustain the second paragraph of the complaint, and it is clearly apparent that the trial in the circuit court proceeded upon the theory of the written contract declared upon in the first paragraph of the complaint, and that the right of recovery upon the second paragraph was not considered. In fact, it is clearly shown by the record that the remedy of the appellant was upon the written contract and not upon the quantum meruit. Therefore the case will be considered under the first paragraph of the complaint.
It is conceded by counsel for the appellant that the written contract declared on in the first paragraph of the complaint was not put in evidence, and was not before the jury on the trial of the cause, and that such was not done clearly appears by an examination of the evidence. This being so, there could have been no recovery for the appellant. Where a written contract is the basis of an action, there must be evidence of the existence of such contract to authorize a verdict. Lucas v. Smith, 42 Ind. 103; Glenn v. Porter, 49 Ind. 500; Potter v. Earnest, 51 Ind. 384; Schlosser v. State, ex rel., 55 Ind. 82.
In this case, as the trial proceeded under the first paragraph in the complaint, and as the appellant failed to introduce in evidence to the jury the contract sued...
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