Micks v. Stevenson

• Decision Date: 01 November 1898
• Citation: 22 Ind.App. 475,51 N.E. 492
• Parties: MICKS et al. v. STEVENSON.
• Court: Indiana Appellate Court

22 Ind.App. 475

51 N.E. 492

MICKS et al.

v.STEVENSON.¹

Appellate Court of Indiana.

Nov. 1, 1898.

Appeal from circuit court, Elkhart county; L. W. Vail, Special Judge.

Action by Milton L. Stevenson against J. E. Micks and E. G. Gilman. There was a judgment for plaintiff, and from the judgment, and an order denying a new trial, defendants appeal. Affirmed.

Dodge & Hubbell, for appellants. Chamberlain & Turner, for appellee.

HENLEY, C. J.

Appellants were on the 23d day of April, 1896, the owners of one-half of the capital stock of the Home Electric Light & Power Company, a corporation doing business in the city of Elkhart, Ind., and upon that day entered into the following contract with appellee: “This agreement, made this 22nd day of April, 1896, between Milton L. Stevenson, of the city of Elkhart, county of Elkhart, state of Indiana, party of the first part, and J. E. Micks and E. G. Gilman, also of said city of Elkhart, parties of the second part, witnesseth: That, for and in consideration of the covenants herein by the parties of the second part, said party of the first part agrees to negotiate a sale to one Carroll Collins, of Champaign, in the state of Illinois, of a one-half interest in the Home Electric Light & Power Co., a corporation doing business in the said city of Elkhart; said one-half interest being owned by said parties of the second part hereto. It is agreed that, upon the consummation of said sale at a sum first to be approved and accepted by the parties of the second part, that the said parties of the second part shall pay to said party of the first part the sum of one thousand dollars ($1,000). In witness whereof, we have hereunto set our hands this day and date first above mentioned. Milton L. Stevenson, Party of the First Part. J. E. Micks, E. G. Gilman, Parties of the Second Part.” Appellee's complaint is founded upon this contract. Said contract is set out in the body of the complaint, and it is alleged that appellee duly performed all the covenants and agreements upon his part as stipulated in the contract; that he negotiated a sale of said one-half interest in said stock to said Carroll Collins, the person named in said agreement; that appellants were the owners of said one-half interest so sold, and that said sale so made was made at a price approved and accepted by appellants; and that the sum of $1,000 is due and unpaid. Judgment is asked for $1,000. Appellants answered by general denial. There was a trial by jury, and a verdict for $1,000 in favor of appellee. Appellants' motion for a new trial was overruled, and judgment rendered in accordance with the verdict of the jury. The assignment of errors on appeal to this court questions the sufficiency of the complaint, and the action of the lower court in overruling the motion for a new trial.

The complaint is attacked for the first time upon appeal, and counsel for appellants in their able brief nowhere attempt to show to this court, or contend, that a material averment has been omitted from the complaint. It is claimed by appellants' counsel that the general averments that appellee complied with all the terms of the agreement upon his part, and that the sale was consummated at a sum approved and accepted by appellants, is not a sufficient showing of performance of the terms of the agreement upon the part of appellee, but that appellee should have stated what he did, and from such statement of facts the court could conclude whether or not he had complied upon his part with the terms of the contract. Without discussing the meritsof appellants' contention, it is enough to say that the averments of appellee's complaint were sufficient, under which the court could without error admit proof of what appellee actually did towards the performance of the conditions imposed upon him by...