Miller v. Palmer

• Citation: 58 N.E. 213,25 Ind.App. 357
• Parties: MILLER v. PALMER.
• Decision Date: 11 October 1900
• Court: Court of Appeals of Indiana

25 Ind.App. 357
58 N.E. 213

MILLER
v.
PALMER.

Appellate Court of Indiana.

Oct. 11, 1900.

Appeal from circuit court, Boone county; Cyrus N. Beamer, Special Judge.

Action by Mary O. Palmer against George E. Miller. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

P. H. Dutch and Winton A. Dutch, for appellant. C. M. Zion and Palmer & Palmer, for appellee.

COMSTOCK, J.

Appellee sued appellant for services rendered in transcribing and furnishing copies of evidence used by attorneys of appellant in a certain suit in which he was plaintiff, for which she alleges he is indebted to her in the sum of $100 and interest from April 1, 1899; that the services were rendered at his request, for his use and benefit, and for which he promised to pay. Appellant answered by general denial. A trial resulted in a verdict and judgment in favor of appellee for $100.

This cause is before the court for the second time. The former appeal is reported as Palmer v. Miller, 19 Ind. App. 624, 49 N. E. 975. The judgment was then reversed upon the ground that under the evidence the appellant (now appellee) was entitled to recover. The court also held that a recovery might be had upon the proof of an implied promise, although the complaint averred an express one. The error now assigned is the action of the court in overruling appellant's motion for a new trial. The reasons set out in the motion are the giving and refusing to give certain instructions, and the admission and refusing to admit certain evidence. Appellee insists that the record does not show the filing of what purports to be the bill of exceptions containing the evidence, and that the greater number of questions argued by counsel for appellant are therefore not presented. In our opinion, the record shows a compliance with the act of the general assembly approved March 3, 1899 (Acts 1899, p. 384). Under that act, the bill of exceptions containing the evidence is in the record.

Counsel for appellee also earnestly contend that the exceptions to the instructions are not properly reserved. Without passing upon this claim of appellee, we have in this opinion treated the questions discussed as properly presented.

The questions raised will be considered in the order in which they are discussed by appellant's counsel. Appellant requested the court to give the following instruction: “The court instructs the jury that they should take into consideration all the evidence given upon the trial; to consider all the facts and circumstances shown by the evidence; the condition of the defendant; his knowledge of the matters alleged in the plaintiff's complaint; and if you believe that copies of the evidence alleged

[58 N.E. 214]

to have been furnished by the plaintiff were used by the attorney or attorneys of the defendant, and if you further believe that the defendant knew that such copies were furnished by the plaintiff at the time they were being used, and were being used for the defendant's benefit and with his consent, then it would be your duty to find for the plaintiff. But, upon the other hand, if you believe from the evidence that the defendant did not know that such copies were furnished by the plaintiff, and he was not present at any time when said copies were furnished from time to time, and did not request plaintiff to furnish said copies, then you should find for the defendant, unless you find that there was an express agreement entered into by and between the plaintiff and defendant to furnish said copies, as alleged in the plaintiff's complaint.” The court modified the instruction by the insertion of the words “at any time” after the word “present.” To this modification the appellant excepted. This action of the court is made a reason for a new...