Kundred v. Bitler

• Decision Date: 12 August 1931
• Docket Number: No. 14002.,14002.
• Citation: 93 Ind.App. 691,177 N.E. 345
• Parties: KUNDRED et al. v. BITLER.
• Court: Indiana Appellate Court

93 Ind.App. 691

177 N.E. 345

KUNDRED et al.

v.BITLER.

No. 14002.

Appellate Court of Indiana, in Banc.

Aug. 12, 1931.

Appeal from Superior Court, Elkhart County; Wm. B. Hile, Judge.

Action by Josephine S. Bitler against Amos E. Kundred and another, in which defendants filed a counterclaim. From a judgment for plaintiff, defendants appeal.

Reversed with directions.

Deahl & Deahl, of Goshen, and Robert E. Proctor, of Elkhart, for appellants.

McClure & Elliott, of Kokomo, for appellee.

CURTIS, J.

This is an action by Josephine S. Bitler (appellee herein) against appellants Amos E. Kundred and David T. Swihart to recover the sum of $4,000 and interest alleged to be the unpaid balance due her from appellants under the terms of a certain written contract.

On March 1, 1928, appellee entered into a written contract with appellants by the terms of which appellee sold to appellants a certain formula and process of ingredients used in the preparation and making of a liquid preparation known as “Bitler's Red Line Tree Life,” such preparation being used to remove or destroy insects, scales, borers, fungus, and blight diseases injurious to tree and plant life. In consideration of such sale, appellants agreed to pay to appellee not less than $5,000, $1,000 of which was paid in cash at the time the contract was entered into. It was agreed that appellants were to manufacture and market the preparation made with the formula and pay appellee 10 cents per gallon on each gallon manufactured and sold with the guaranty that if this royalty did not amount to $4,000 within five years that appellants would pay to appellee (plaintiff) enough money to make the amount equal $4,000 or a total consideration of $5,000. The evidence shows that appellee performed her part of the contract, and that appellants took charge of the formula but failed to manufacture any of the preparation in commercial quantities and have failed to make any payments whatever to appellee in addition to the $1,000 paid in cash upon the execution of the contract.

Appellants answered appellee's complaint by an answer in two paragraphs. The first paragraph was an answer in general denial, while the second paragraph alleged that appellee, by means of certain fraudulent representations regarding the formula, induced appellants to enter into the contract. Appellants also filed an additional paragraph which they denominate a counterclaim, but which is substantially similar to their second paragraph of answer. Appellants, by their second paragraph of answer and counterclaim, asked the return of the $1,000 which they paid appellee when the contract was executed. Appellees filed a general denial to each of the second paragraphs of answer and the counterclaim. The jury returned a verdict in favor of appellee on the counterclaim and for $2,000 on the complaint. Judgment being rendered upon the verdict, defendants (appellants) appeal and say the court erred in overruling their motion for a new trial.

[1] Appellee attacks the sufficiency of appellants' brief and says that appellants have waived all alleged errors by their failure to comply with Clause 4 of rule 22 of this court, which requires the errors relied upon for reversal to be stated. Under the heading “Errors Relied upon for Reversal,” appellants have set out their assignment of error. This is sufficient. See Morgan v. Henry Brick Co. et al. (1931, Ind. App.) 176 N. E. 237. Other preliminary matters affecting the sufficiency of appellants' brief are discussed by appellee, but we hold appellants' brief sufficiently complieswith the rules of this court so as to present the questions complained of.

The trial court, on the amount of recovery, instructed the jury as follows: “If you find from all the evidence in this cause that the contract was made between the plaintiff and defendants as alleged, and that the defendants agreed to pay $1,000 in cash to plaintiff and did so and also to enter promptly upon the manufacture and sale of Bitler's Red Line Tree Life and pay to plaintiff 10 cents per gallon royalty on all of such product sold by them for five years, and failed to so do but abandoned such product, and never paid plaintiff any money other than such $1,000, plaintiff would be entitled to receive on such contract the sum of $4,000 with interest thereon from March 1, 1928, at 6% per annum. If you find, however, that such contract was made as alleged but that same was induced by fraud of plaintiff under facts as you find them to be herein from the evidence, and the law as given you by the court, then such fraud, if any, would be a defense to plaintiff's claim under such contract and you should find for defendant. And further if you find such contract to have been made as alleged and you further find that the same was induced by actionable fraud under the instructions given you by the court and the facts as shown by the evidence and you further find that the defendants have not been guilty of unreasonable delay in rescinding their contract and bringing their action to recover all sums paid, then you should find for defendants on the counter-claim in the sum of $1,000 and interest thereon at 6% per annum from March 1, 1923. If, however, you find such to be the case but that defendants have been guilty of unreasonable delay in resuming (rescinding) such contract and asserting their rights to recover and that to do so would under all the facts be unjust to plaintiff, you should find on such counter-claim for plaintiff.”

It is appellants' contention that the instruction of the court, supra, became the law of the case; that it was the duty of the jury to apply the law to the evidence and to return a verdict in accordance with the law and the evidence; that under this instruction, the jury should have returned a verdict for plaintiff (appellee) for $4,000 with interest or a verdict for the defendants (appellants); that their failure to do this and their returning a verdict for plaintiff for $2,000 necessarily renders such verdict contrary to law.

In the instant case there is no contention of part payment or partial failure of consideration. Appellee, however, contends that “if there is evidence in the record, if believed and acted upon, which would have been sufficient to sustain a verdict awarding no damages at all to the plaintiff (appellee), then the fact that the verdict is less than other evidence in the case would warrant, gives no cause for reversal.” Appellee, in support of this contention, cites and relies upon the case of Spannuth v. Cleveland, Cincinnati, Chicago & St. Louis R. Co. (1925) 196 Ind. 379, 148 N. E. 410, 411.

It is to be noted that the Spannuth Case was an action by appellant against appellee for damages for personal injuries. The damages in that case were not capable of exact measurement. The evidence in that case did not show, without dispute, that a certain sum was due, if anything at all due.

It has been held that “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.” (Our italics.) Kingan & Co. v. Orem (1906) 38 Ind. App. 207, 78 N. E. 88.

The Supreme Court, in their opinion in the Spannuth Case, refused to reverse that case because to do so they would have had to have resorted to inferences. The court said: “They [appellants] ask the court to infer that the jury agreed upon a finding that defendant had inflicted the injuries by reason of its negligence, without fault on the part of plaintiff, and was therefore liable to him for all the damages he sustained. *** But if resort were had to inferences we might as reasonably infer that the jury became convinced that plaintiff stepped on the track immediately in front of defendant's train and was injured solely by reason of his own negligence,...