Moellering v. Kayser

• Decision Date: 28 April 1887
• Citation: 110 Ind. 533,11 N.E. 604
• Parties: Moellering v. Kayser.
• Court: Indiana Supreme Court

110 Ind. 533

11 N.E. 604

Moellering

v.Kayser.

Supreme Court of Indiana.

April 28, 1887.

Appeal from circuit court, Allen county.

Chapin & O'Rourke, for appellant. Sinclair & Hanna, for appellee.

MITCHELL, J.

Moellering sued Kayser on a note, payable in six months from January 12, 1884, for $200, with 6 per cent. interest and attorney's fees. The defendant filed an answer and counter-claim, in which he alleged, in substance, that the note sued on was executed for a balance claimed to be due the plaintiff on a contract for the construction of a brick store-building for the defendant. The contractor agreed to furnish the material and erect the building for $1,430. It is averred that the plaintiff failed to complete the work according to the contract, and that the defendant sustained damages to the amount of $600 on account of the plaintiff's default. Upon issues joined there was a trial, and verdict for the defendant.

The only question made here is that the evidence does not sustain the finding. Recognizing the well-established rule that, where there is any evidence which sustains the verdict, a judgment will not be reversed by this court on the mere weight of evidence, the claim is nevertheless urged on behalf of the appellant that there is no evidence to sustain the amount of damages assessed on the defendant's counter-claim. It is also claimed that the evidence does not sustain the allegations of the counter-claim, because the proof shows, without contradiction, that the work was not done under the written contract, a copy of which is set out with the pleading.

There is no force in this last position. The evidence tends to show that, after the contract was made, some slight changes were agreed upon which decreased the amount of work on the building. On account of these changes, the contract price was correspondingly reduced by agreement. The changes and reduction are in nowise involved in this controversy. The counter-claim was for the recoupment of damages alleged to have resulted from defective workmanship in doing that which was confessedly within the contract. The written agreement was therefore only incidental or collateral to the defendant's claim for damages. Proof of deviations from the contract by mutual consent was not an abandonment of the contract, nor was it fatal to the defendant's right to recover, to the extent of the damages sustained by defective workmanship.

It is, however, plainly apparent that the finding for ...