Indep. Torpedo Co. v. J.E. Clark Oil Co.

• Decision Date: 21 June 1911
• Docket Number: No. 7,146.,7,146.
• Citation: 48 Ind.App. 124,95 N.E. 592
• Parties: INDEPENDENT TORPEDO CO. v. J. E. CLARK OIL CO.
• Court: Indiana Appellate Court

48 Ind.App. 124

95 N.E. 592

INDEPENDENT TORPEDO CO.

v.J. E. CLARK OIL CO.

No. 7,146.

Appellate Court of Indiana, Division No. 1.

June 21, 1911.

Appeal from Circuit Court, Jay County; John F. La Follette, Judge.

Action by the J. E. Clark Oil Company against the Independent Torpedo Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Orr & Orr, for appellant. Richard H. Hartford, for appellee.

FELT, P. J.

Appellee, in a complaint of five paragraphs, sued appellant for damages to personal property and for the rental or use of an engine, boiler, derrick, and drilling tools. The court made a special finding of facts, and stated its conclusions of law thereon. The finding was in favor of appellant on the paragraphs seeking to recover damages and against it on the paragraphs for the use of the property. Judgment was rendered for appellee in the sum of $1,193.88, from which this appeal is taken. The appellant assigns as error the overruling of its motion for a new trial, which was asked on the ground that the damages assessed are excessive. The decision of the court is not sustained by sufficient evidence, and is contrary to law.

[1] Other reasons are stated in the motion relating to the special finding of facts, but these are not properly a part of the motion for a new trial. Hamrick v. Hoover, 41 Ind. App. 411, 415, 84 N. E. 28;Scott v. Collier, 166 Ind. 644, 647, 78 N. E. 184. The complaint charges and the evidence tends to show that appellant undertook to “shoot” a gas well for appellee, and that in so doing a charge of nitroglycerine was exploded so near the surface as to blow out about 150 feet of the casing of the well and cause other damage; that appellant obtained from appellee the use of its boiler, engine, derrick, and drilling tools to be used in an effort to repair the damage caused by the explosion; that the same were so used, and appellant agreed to pay reasonable compensation therefor.

[2] The appellant contends that there is no consideration moving from appellee in support of its claim and judgment. One paragraph of the complaint alleges an agreement to pay a reasonable compensation for the use of the property and a refusal to comply with that agreement. The court found, and the evidence tends to support the finding, that the use of the property was worth $25 per day, and that appellant had the possession and use of the same for 47 days. This is sufficient to show a consideration. Neiderfer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198;Eisel et al. v. Hayes, 141 Ind. 41, 40 N. E. 119;Hunt v. Dederick, 105 Ind. 555, 5 N. E. 710;Starr v. Earle et al., 43 Ind. 478.

[3] The contention that “use” must be limited to days of actual service cannot be sustained. The evidence tends to show that appellee was anxious to obtain possession of its property, and certainly it was the duty of appellant to return the same to it when through using it. While appellant retained the possession with the right to use the property, and deprived appellee of both possession and use, it cannot rightfully complain of the court's finding. One definition of the word “use” given by Webster is applying to one's service, employment, or conversion to some purpose. See, also, 8 Words &...