Lesh v. Johnston Furniture Co.

• Decision Date: 22 March 1938
• Docket Number: 27050.
• Citation: 13 N.E.2d 708,214 Ind. 176
• Parties: LESH v. JOHNSTON FURNITURE CO.
• Court: Indiana Supreme Court

13 N.E.2d 708

214 Ind. 176

LESH v. JOHNSTON FURNITURE CO.

No. 27050.

Supreme Court of Indiana

March 22, 1938

Appeal from Whitley Circuit Court; Robt. C. McNagny, Judge.

James E. Lesh, of Indianapolis, Strong & Strong, of Columbia City, and Sam Lesh, of Indianapolis, for appellant.

Kenner & Glenn and Sapp & Sees, all of Huntington, and Gates & Gates, of Columbia City (Arthur H. Sapp and Burr H Glenn, of Huntington, of counsel), for appellee.

SHAKE, Judge.

The Acts of 1901, chapter 247, § 15, Burns' Ann.St.1933, § 4-209, section 1364, Baldwin's Ind.St.1934, provide that 'if four (4) judges' (of the Appellate Court) 'shall not concur in the result, the case shall be transferred to the Supreme Court.' The judgment of the lower court was affirmed, without dissent, by the Appellate Court in banc. Lesh v. Johnston Furniture Co. Ind.App.1937, 10 N.E.2d 310. Thereafter, the appellant filed a petition for rehearing, which was denied with a supplemental written opinion. There judges of the Appellate Court dissented from the opinion on rehearing. Lesh v Johnston Furniture Co., Ind.App.1938, 11 N.E.2d 1000.

The object of a petition for rehearing is to point out mistakes of law or of fact, or both, which it is claimed the court made in reaching its conclusion. Marion Light & Heating Co. v. Vermillion, 1912, 51 Ind.App. 677, 99 N.E. 55, 100 N.E. 100. When a written opinion is filed on rehearing, the original opinion is modified to the extent set out in the second opinion, even though the court has reached the same result so far as the ultimate disposition of the cause is concerned. Our practice authorizes this court to review the opinions of the Appellate Court, on petition assigning that a ruling precedent of this court is contravened or that a new question of law is directly involved and decided erroneously. Burns' 1933, § 4-215, section 1359, Baldwin's Ind.St.1934. Where there is a petition to transfer under Burns' 1933, § 4-215, section 1359, Baldwin's Ind.St.1934, and a petition for rehearing has been considered in the Appellate Court, and a written opinion filed, this court must necessarily look to the original opinion and the supplemental opinion to determine if a cause for transfer exists. It follows that this cause must be transferred to this court under Burns' 1933, § 4-209, section 1364, Baldwin's Ind.St.1934.

Appellant's complaint in the court below was in two paragraphs. The first paragraph was to recover rent in the aggregate sum of $1,440, alleged to have been due appellant under a written lease covering a business building in the city of Huntington. The second paragraph sought to recover an additional sum of $400 for expenses incurred by the appellant in reconditioning the property upon the termination of the lease. The appellee answered in general denial and with two affirmative paragraphs, wherein it alleged that the terms of the lease sued on had been modified so that there was due the appellant only $300; that appellee had tendered that amount to the appellant, and, upon his refusal to accept the same, had paid the same to the clerk of the court for appellant's use and benefit. There was a reply to the affirmative paragraphs of answer charging that the modifications of the original lease had failed for want of consideration.

A jury trial resulted in a verdict and judgment for the appellee and there was a motion for a new trial, which was denied. Error is claimed on the ruling on the motion for a new trial. The assignments are: (1) That the court erred in refusing to direct a verdict for the appellant for $1,145; (2) that the court erred in giving and in refusing to give certain instructions; (3) that there was error in the exclusion and admission of certain evidence; (4) that the verdict is not sustained by sufficient evidence; and (5) that it is contrary to law.

On the first error assigned the appellant contends that the lease contract being in writing and there being no controversy as to the amount of rental payable thereunder, he was entitled as a matter of law to a directed verdict for the full amount of his demand on the first paragraph of complaint. An examination of the record discloses, however, that the evidence as to the contract between the parties was not without conflict, and there was evidence from which the jury may have inferred that the contract had been modified orally. Under these circumstances, the court did not err in refusing to direct a verdict for the appellant.

This court cannot review the alleged error of the trial court in giving and in refusing to give the instructions complained of, for the reason that all of the instructions given by the court are not contained in the record. Linn Grove Light & Power Co. v. Fenning, 1927, 86 Ind.App. 170, 154 N.E. 877; Hiser et al. v. Litchfield, 1926, 87 Ind.App. 19, 154 N.E. 510; Cornelius et al. v. Thomas et al., 1929, 90 Ind.App. 254, 167 N.E. 563.

There was no error in the refusal of the trial court to admit in evidence Appellant's Exhibit 40. This exhibit purported to be a carbon copy of a letter which appellant contended he had written and mailed to the appellee. The evidence as to the mailing of the letter was conflicting and there was no proof that the original copy of the letter was ever received by the appellee. The rejection of this evidence was within the discretion of the trial court. After examining the record with respect to the evidence offered and excluded, and that which was admitted over objection, we conclude that there was no reversible error on the part of the trial court with respect thereto.

In support of his contention that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, appellant points out that appellee's affirmative answer admitted a liability of $300 to the appellant. This would be conclusive upon the proposition that the verdict of the jury was contrary to law and would require a reversal unless the error was rendered harmless by other circumstances.

It further appears from appellee's answer and the record that prior to the commencement of the action the said sum of $300 was tendered to appellant and refused whereupon it was...