Marcisz v. Osborne

• Decision Date: 30 March 1954
• Docket Number: No. 18439,18439
• Citation: 118 N.E.2d 378,124 Ind.App. 574
• Parties: MARCISZ et al. v. OSBORNE.
• Court: Indiana Appellate Court

Page 378

118 N.E.2d 378

124 Ind.App. 574

MARCISZ et al. v. OSBORNE.

No. 18439.

Appellate Court of Indiana, In Banc.

March 30, 1954.

Walter Nowicki, Edward J. Raskosky, George Kohl, Hammond, Nolin & McConnell, Fowler, for appellants.

Green, Powers & Belshaw, Whiting, Fraser & Isham, Fowler, for appellee.

BOWEN, Judge.

This is an appeal from a judgment in an action for the foreclosure of a mechanic's lien brought by the appellee against the appellants, husband and wife. The complaint was in two paragraphs, the first being to foreclose the mechanic's lien, and the second for quantum meruit for labor and material furnished.

Issues were joined upon appellee's second amended complaint in two paragraphs. The first paragraph alleged that appellee and appellants entered into a written contract for the construction of a certain dwelling house for appellants for the sum of $13,600; that the appellee furnished material and labor which was used in the construction of said dwelling house; that appellants ordered appellee to stop work before the completion of said dwelling house, after the appellants had paid appellee $11,000; that there is still due appellee $2,600 for the reasonable value of the labor and material furnished over and above the $11,000 paid by the appellants. The complaint also asked for attorneys' fees. The second paragraph contained allegations which were substantially the same as the first, and in addition alleged certain extra labor and material were furnished at appellants' request. The prayer was for recovery of $2,758.25 upon the quantum meruit for labor and material furnished, and for other proper relief.

Appellants filed a motion for a bill of particulars requesting that the plaintiff file with his second amended complaint a bill of particulars stating more particularly the items of the cause of action sued on. This was overruled.

To appellee's complaint appellants filed an answer in two paragraphs, the first denying that plaintiff furnished such labor and material and denying any balance due to appellee and the second denying there was any balance due the appellee.

Trial was had by the court and judgment was rendered in favor of appellee on his first paragraph of complaint seeking foreclosure of the mechanic's lien.

By its decree the court found and ordered that there was due the plaintiff from the defendants on the claim and demand sued on the sum of $2,600 and that he was entitled to a judgment of foreclosure for such sum.

From this judgment the appellants have prosecuted this appeal. The sole error assigned for reversal is that the court erred in overruling the appellants' motion for a new trial. Grounds of the motion for a new trial are: that the decision of the court is not sustained by sufficient evidence and is contrary to law; that improper evidence was received over appellants' objection in the court below which was not stricken out on motion; that the court erred in overruling appellants' motion for a further bill of particulars as to amended Exhibit B; and that the court erred in overruling appellants' motion to make the first paragraph of the second amended complaint with amended Exhibit B more specific.

The appellants assign as error the introduction of nine exhibits. The objections to such exhibits are voluminous but the substance of appellants' contention is that the appellee failed to lay a proper foundation for their introduction and that the exhibits, therefore, were not admissible in evidence, in that there was no showing of the death or absence within the reach of the court of the people with personal knowledge relating to the making of the records; that they did not constitute books of original entry and were separate sheets of paper without being a permanent record; that they are hearsay evidence and were not made in the regular course of appellee's business, and violate the best evidence rule and are not part of the res gestae; and that the court erred in the admission of such parol or documentary evidence over objection, and in the failure to strike the same after its admission.

It has been held that a witness may, for the purpose of refreshing his memory, refer to memoranda made by him at the time. Trustees of Wabash & Erie Canal v. Bledsoe, 1854, 5 Ind. 133; Prather v. Pritchard, 1866, 26 Ind. 65; Sage v. State, 1891, 127 Ind. 15, 26 N.E. 667; Cleveland, C., C. & St. L. R. Co. v. Woodbury Glass Co., 1923, 80 Ind.App. 298, 120 N.E. 426; Ellis v. Baird, 31 Ind.App. 295, 67 N.E. 960.

Appellants claim that the trial court erroneously permitted the plaintiff to refresh his recollection using Exhibit 25-A and that a proper foundation was not laid for the introduction of such exhibit. We believe that the action of the lower court comes within the rule of Federal Union Surety Co. v. Indiana Lumber & Mfg. Co., 1911, 176 Ind. 328, 95 N.E. 1104. In Crumpacker, Indiana Evidence, §§ 2269-70, p. 525, this case is summarized as follows:

'In an action for the price of lumber sold, a hauler for plaintiff testified that he delivered a number of loads to the contractor, that in some instances he examined the original slips to see if the load contained the lumber described in the slip, but usually the contractor or his foreman checked the slip as the lumber was unloaded. He was then handed a slip of a certain number, and asked if he remembered delivering a load of lumber represented by the slip, and answered in the affirmative. Held, that the court properly permitted him to refer to the slip to refresh his recollection, and then to state the number of pieces and dimensions and kinds of lumber he unloaded from the wagon on that...