Kingan & Co. v. Orem

• Decision Date: 07 June 1906
• Docket Number: No. 5,465.,5,465.
• Citation: 38 Ind.App. 207,78 N.E. 88
• Court: Indiana Appellate Court
• Parties: KINGAN & CO., Limited, v. OREM et al.

38 Ind.App. 207

78 N.E. 88

KINGAN & CO., Limited,

v.OREM et al.

No. 5,465.

Appellate Court of Indiana, Division No. 1.

June 7, 1906.

Appeal from Circuit Court, Tipton County; J. F. Elliott, Judge.

Action by Kingan & Co., Limited, against William Orem and others. From the judgment, plaintiff appeals. Affirmed.

Kirkpatrick & Morrison and Oglebay & Oglebay, for appellant. Blacklidge, Shirley & Wolf, for appellee.

ROBINSON, C. J.

Appellant's complaint against Orem, Chapman, and Gwinn is in two paragraphs. The first paragraph seeks to recover of Gwinn the value of a stock of goods sold to him by Orem and Chapman, on the ground that the goods were sold in bulk without complying with the act of 1901 regulating sales in bulk. The second paragraph avers: That on August 26, 1901, Orem and Chapman, as partners, were engaged in a retail grocery and meat business. That the firm was indebted to appellant $141.69 for goods sold and delivered to the firm at its request. That on the above date the firm sold to Gwinn their entire stock for $400 cash. That he, “on the 9th day of September, 1901, for a valuable consideration, promised and agreed to pay plaintiff's account herein set out in Exhibit A, filed with the first paragraph of complaint herein and made a part of the paragraph, by indorsement thereon in writing in the following words and figures, to wit: ‘I guarantee the payment of this account. Geo. L. Gwinn. 9/9/01.”’ That appellant accepted such promise and agreement as security for the payment of the account and relied thereon. That appellees have failed to pay the account, though demanded, and that the same is past due and unpaid. That Orem and Chapman individually and as a firm were on August 26, 1901, by reason of such sale rendered and became insolvent, and that each and the firm have since been and are now insolvent. It asks judgment against appellees. A demurrer to the second paragraph was overruled. Appellee Gwinn answered by general denial, and that the guaranty sued on in the second paragraph was given without any consideration. Orem and Chapman were defaulted. Upon a trial the court found in appellant's favor against the appellees for $25, and over appellant's motion for a new trial rendered judgment for that amount. Overruling the motion for a new trial is the only question argued.

The judgment rendered is in appellant's favor, and the only complaint made in this court is that the amount of recovery is too small. The argument of counsel is directed to the judgment as against Gwinn. A failure to assess a larger amount of recovery may or may not be solely a question of fact. If, in a given case, there is a dispute as to the amount that should be recovered, the appellate court could not disturb a finding on the ground that the amount found to be due was too small; but if the evidence shows without dispute that a certain sum is due, if anything is due, whether the amount found to be due is too small may be a question of law. Paxson v. Dean, 31 Ind. App. 46, 67 N. E. 112. If the finding rests upon the first paragraph of complaint, appellant cannot be heard to complain that the amount of recovery is too small, for the reason that this paragraph is based upon the act of March 11, 1901 (Acts 1901, p. 565, c. 220), which act has been held unconstitutional. Sellers v. Hayes (Ind. Sup.) 72 N. E. 119. See,...