Kuhn v. Powell
| Decision Date | 23 February 1916 |
| Docket Number | No. 8902.,8902. |
| Citation | 111 N.E. 639,61 Ind.App. 131 |
| Parties | KUHN et al. v. POWELL. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Knox County; B. M. Willoughby, Judge.
Action by Anna Powell against Paul Kuhn and others. From a judgment for plaintiff, defendants appeal. Affirmed.
S. M. Emison, of Vincennes, for appellants. C. B. Kessinger, of Vincennes, for appellee.
Appellee alleges in her complaint that appellants are indebted to her in the sum of $2,217.60, for 4,928 bushels of corn sold and delivered to them in the fall of 1912, at 45 cents per bushel. Prayer for judgment for $3,000 and general relief. Appellants answered, admitting the purchase and delivery of the corn, but alleging that the contract price was 40 cents per bushel, rather than 45 cents. By their answer they also admit that they are indebted to appellee in the sum of $1,971.20, for which amount they offer to confess judgment, with costs added to the filing of the answer. A trial by jury resulted in a verdict and judgment in favor of appellee for $2,306.30.
The questions urged on this appeal arise under the motion for a new trial, and are in effect that the recovery is too large, insufficiency of the evidence, that the verdict is contrary to law, and alleged error in giving instructions. The parties apparently agree that the items entering into the verdict are the amount due on the corn at 45 cents per bushel and interest on such amount in the sum of $88.70. The general verdict includes a finding by the jury that the contract price for the corn was 45 cents. rather than 40 cents, per bushel. There is evidence to sustain the verdict in this respect. We understand, however, from the briefs, that all the questions urged upon our attention, including the insufficiency of the evidence, are directed to the sole query of whether interest was properly allowed on the unpaid selling price of the corn.
[1] The assignment in the motion for a new trial, relating to the giving of instructions, is in the following language:
“The court erred in giving instructions numbered 1, 2, 3, 4, 5, and 6 on its own motion.”
Such assignment is joint as to the instructions named. It follows that all included in the assignment must be incorrect in order that the assignment may be available. Appellants in their brief attack only the fourth of these named, and thereby concede that the others are correct. The assignment, therefore, must fail. Young v. Montgomery, 161 Ind. 68, 67 N. E. 684;Chicago Furniture Co. v. Cronk, 35 Ind. App. 591, 74 N. E. 627.
[2] The assignment that the verdict is contrary to law is predicated by appellants on the giving of alleged erroneous instructions. It follows that this assignment also presents no question.
[3] There remain for our consideration the question of whether the amount of the recovery is too large, which question is directed to the item of interest, conceded to be included in the verdict, and the subsidiary question of whether the evidence is sufficient to sustain that element of the verdict. There was no express contract for the payment of interest. There is a statutory provision that:
“On *** an account closed upon the day an itemized bill shall have been rendered and payment demanded, *** interest shall be allowed at the rate of six dollars a year on One Hundred Dollars.” Section 7952, Burns 1914.
It is argued that the evidence fails to show a demand of payment, and that as a consequence interest was not allowable. There was evidence that in the early fall of 1912 appellee contracted with appellants, through the manager of their elevator, for the sale of her corn. Delivery pursuant to the sale was completed by December 1st. About February 1, 1913, appellee called on appellants' manager for payment of the account. The parties agreed that the amount of corn sold and delivered was 4,928 bushels. The manager proceeded to figure the bill ...
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