Hoffman v. Toll
| Decision Date | 17 September 1891 |
| Docket Number | 268 |
| Citation | 28 N.E. 557,2 Ind.App. 287 |
| Parties | HOFFMAN ET AL. v. TOLL |
| Court | Indiana Appellate Court |
From the Hamilton Circuit Court.
Judgment affirmed.
T. J Kane and T. P. Davis, for appellants.
J Stafford and T. E. Boyd, for appellee.
Hoffman & Barrett, as special partners for that purpose only, took a contract from the school trustees of the city of Noblesville to furnish materials and construct a public school building in said city, according to certain plans and specifications.
They employed Toll to do the plastering upon the building, and when the structure was almost completed the school trustees contracted with the firm of Smead & Co. to put in machinery and apparatus for heating and ventilating, and a dry-closet system. Smead & Co. contracted with Barrett, who assumed to act for the firm of Hoffman & Barrett, to do the work about the building in connection with such heating and ventilating apparatus, and Barrett, so assuming to act for his firm, employed Toll to do the additional plastering made necessary by such improvements. Toll did the work in the belief that it was a partnership undertaking, and then brought this suit against Hoffman & Barrett to recover a general balance alleged to be due from them as partners on account of the plastering.
Barrett was duly served with process and suffered default, but Hoffman appeared to the action and filed an answer in four paragraphs. The first was the general denial, the second and third were pleas of payment, and the fourth was a combination of answer and counter-claim, in which it was alleged that Hoffman & Barrett undertook the construction of the building according to certain plans and specifications, as special partners, and as such they employed Toll to do the plastering, but that he had failed to complete the work according to his contract, and that Hoffman & Barrett had settled with the school trustees for the work and agreed with them that it would require $ 73.17 to complete Toll's contract, and the trustees retained that amount from the contract-price of the building, to be paid to Toll when he should finish his work; that Toll had knowledge of and assented to such arrangement, and that he had never completed the work.
It was also alleged that Hoffman had no part in the contract to put in the heating and ventilating apparatus, but that Barrett undertook said work on behalf of the firm without Hoffman's knowledge or consent, and that he employed Toll to do the additional plastering on behalf of the firm, without Hoffman's consent and without authority, and that such additional work amounted to $ 39.10.
No demurrer was filed to the answer, and a reply in general denial joined the issues. The cause was tried by a jury and a verdict returned in favor of Toll for $ 197.09, the full amount of his claim. The jury returned answers to a series of interrogatories submitted to them by the court at the defendant's request.
The defendant moved for judgment upon the interrogatories and for a new trial, both of which motions were overruled, and judgment was rendered upon the general verdict.
Motions were made by the defendant to modify the judgment, and overruled by the court.
This appeal was taken by Hoffman alone, and the alleged errors which he relies upon for the reversal of the judgment are:
1. In awarding judgment for the full amount of the verdict.
2. Overruling the motion for a new trial.
The first of these assignments is based upon the interrogatories, which, with the answers, are as follows:
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