Jose-Balz Co. v. De Witt

• Decision Date: 25 June 1931
• Docket Number: No. 14036.,14036.
• Citation: 93 Ind.App. 672,176 N.E. 864
• Parties: JOSE-BALZ CO. v. DE WITT.
• Court: Indiana Appellate Court

93 Ind.App. 672

176 N.E. 864

JOSE-BALZ CO.

v.DE WITT.

No. 14036.

Appellate Court of Indiana, in Banc.

June 25, 1931.

Appeal from Superior Court, Marion County; Wm. O. Dunlavy, Judge.

Action by the Jose-Balz Company against Edith De Witt, in which defendant filed counterclaim. From a judgment for defendant, plaintiff appeals.

Affirmed.

John W. Bowlus, and Slaymaker, Merrell, Ward & Locke, all of Indianapolis, for appellant.

Carl E. Wood, of Indianapolis, for appellee.

LOCKYEAR, J.

The pleadings allege and the evidence shows in this case that on the 7th day of March, 1922, the appellant and Ernest L. Ziegler and Edith Ziegler, his wife, entered into a written contract for the purchase of a certain lot and the erection of a house and garage thereon by the appellant.

Ernest L. Ziegler has since died, and Edith Ziegler has married a man by the name of De Witt, and she is the appellee herein.

By the terms of the contract, the house was to be built according to the plans and specifications, the appellant to furnish all labor and material, the appellee to specify the kind and quality of material to be used. The amount to be paid was to be the total cost plus 15 per cent., together with $2,500 the purchase price of the lot. The time and manner of payment was set out fully in the contract. The house was built and delivered to the appellee August 14th at a total cost of $13,396.82. The house was finished with stucco or plaster on the outside and it soon began to peel and crack and fall off; particularly on the porch did this occur. The appellant patched the porch a number of times and then filed this action for said repairs, wherein it is sought to foreclose a mechanic's lien for $163.70.

The appellee filed an answer in two paragraphs to the complaint; the first of which is a general denial, and the second paragraph of answer is a plea of payment. The appellee also filed an amended counterclaim in which it is alleged that the work, labor, and material furnished by the appellant is of no benefit and value to the property, and was so unskillfully and negligently done by the appellant that soon after the completion of the work the front walls thereof cracked, one side of the residence settled more than the other, the railing of the porch cracked and broke, the concrete used in the residence and the driveway gave way, cracked, and broke to the damage of the appellee in the sum of $5,000, wherefore she prays judgment.

The cause was submitted to the court for trial; there was a finding and judgment for the appellee against the appellant in the sum of $500.

The appellant filed motion for a new trial on the grounds that the decision of the court is contrary to law and is not sustained by sufficient evidence, and error...