Miller v. Fuller

Decision Date30 November 1898
Docket Number2,560
Citation52 N.E. 101,21 Ind.App. 254
PartiesMILLER ET AL. v. FULLER
CourtIndiana Appellate Court

From the Ripley Circuit Court.

Affirmed.

John B Rebuck and Nicholas Cornet, for appellants.

Samuel M. Jones and Frank S. Jones, for appellee.

OPINION

COMSTOCK, J.

Appellee instituted this action against appellants to recover damages for the breach of an executory contract for the conveyance of real estate and sale of drugs, fixtures and medical practice of appellant Reuben H. Miller, who was a practicing physician, and Lizzie Miller, his wife, residing on the premises described in the contract at the village of Cross Plains, Ripley county, Indiana. Appellee was a physician residing near the home of appellants. The contract is made a part of the complaint as an exhibit. Appellants demurred separately to the complaint, which demurrers were overruled and exceptions duly reserved. The cause was put at issue by general denial and special answers.

No question is raised on any of the pleadings but the amended second paragraph of complaint on which the cause was put at issue and tried, and we need therefore refer only to it. At the request of appellants the jury trying the cause returned a special verdict, upon which both parties moved for judgment. The court overruled that of appellants, sustained that of appellee, and rendered judgment in his favor for $ 1,000. Appellants' several motions for a venire de novo and for a new trial were overruled and exceptions taken. The errors assigned are: (1) The court erred in overruling the separate demurrer of Reuben H. Miller to the amended second paragraph of complaint. (2) In overruling the separate demurrer of appellant Lizzie Miller to the amended second paragraph of complaint. (3) In overruling appellants' motion for a venire de novo. (4) In its statements of law. (5) In overruling appellants' motion for judgment on the special verdict of the jury. (6) In overruling the appellants' motion for a new trial. (7) In overruling Reuben H. Miller's motion for a new trial. (8) In overruling Lizzie Miller's motion for a new trial.

The first, third and fourth specifications in the assignment of errors are not discussed and are therefore, under the familiar rule, waived. Under the second specification, appellants' counsel contend that no cause of action is shown against appellant Lizzie Miller. The complaint avers that the plaintiff and defendants entered into the written agreement upon which it is based and which is made a part thereof. Her name does not appear in the body of the instrument, but her name is signed thereto. She is thus sufficiently connected therewith. Besides a special verdict having been returned even if this allegation was defective, it becomes immaterial. At most it could be only a defective averment, not the entire omission of a fact essential to a cause of action. Woodward v. Mitchell, 140 Ind. 406, 39 N.E. 437; Western Assurance Co. v. McCarty, 18 Ind.App. 449, 48 N.E. 265; Rau v. Ball Bros. Glass Mfg. Co., ante, 147; Western Assurance Co. v. Koontz, 17 Ind.App. 54, 46 N.E. 95. In addition the jury in answer to a proper interrogatory found that she entered into the contract in suit.

The argument of appellants' counsel in support of the fifth specification of error is chiefly based upon the findings of the special verdict. They contend that each of many of the interrogatories submitted to the jury call for more than one fact; that there are others which state the evidence, and not facts; and still others that call for mere legal conclusions. The objections made apply to some of the interrogatories named, but the record does not disclose that appellants at any time objected or excepted to them. Having failed to do...

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