Montgomery Ward & Co. v. Thalman, 17892

• Decision Date: 28 June 1950
• Docket Number: No. 17892,17892
• Citation: 93 N.E.2d 352,120 Ind.App. 473
• Court: Indiana Appellate Court
• Parties: MONTGOMERY WARD & CO., Inc., v. THALMAN et al.

Page 352

93 N.E.2d 352

120 Ind.App. 473

MONTGOMERY WARD & CO., Inc., v. THALMAN et al.

No. 17892.

Appellate Court of Indiana, in Banc.

June 28, 1950.

McClure, Shenk & Ellis, Kokomo, David L. Dickson, Francis D. Roth, Chicago, Ill., Henry R. Sackett, Gary, for appellant.

Barnes, Hickam, Pantzer & Boyd, Earl B. Barnes, Robert S. Ashby, all of Indianapolis, Don P. Strode, Kokomo, for appellees.

BOWEN, Judge.

This is an appeal from a judgment on a complaint for a new trial under Section 2-2401, Burns 1933. Appellees originally filed an action against the appellant to recover monies alleged to be due pursuant to a lease which was previously tried in the Howard Circuit Court and which is now pending in this court as Cause No. 17480. This prior action was substantially identical to the case of Johnson v. Montgomery-Ward, Inc., which is now pending in this court as Cause No. 17481 and was consolidated with it for trial.

Following the original trial judgment was rendered against appellees denying recovery. Following the judgment in the previous actions, appellees filed an original complaint in two paragraphs in the court below, asking that a new trial be granted pursuant to the aforementioned section of the statute, because of newly discovered evidence and surprise on the assigned grounds that certain stipulations and representations of facts peculiarly within the knowledge of the appellant, were made at the trial in the lower court with regard to rental deductions; that the appellees relied upon defendant's representations and stipulations regarding those facts; that the fact that the appellant asserted it had a right to deduct from rentals monies paid for the rental of certain outside premises was first discovered by appellees when appellant filed its answer brief in the appeal of said consolidated cause; and that the appellees used reasonable diligence and could not have known by the exercise of reasonable diligence before the entry of said judgment that appellant would assert a right inconsistent with its representations and stipulation of facts at the trial itself as to the deduction of rentals.

The lower court found in favor of appellees and ordered and decreed that the judgments previously rendered in the original actions, Cause No. 17480 and No. 17481, be set aside and new trials granted therein.

Errors assigned for reversal and not waived are that the court erred in overruling appellant's motion to modify the judgment and that the court erred in overruling appellant's motion for a new trial.

Grounds of appellant's motion for a new trial are that the decision of the court is contrary to law and that the decision of the court is not sustained by sufficient evidence.

From the record the following facts appear: The appellant operates a department store and farm store in three interconnected buildings in the City of Kokomo, Indiana. Facing west on Main Street is the Thalman-Johnson Building and immediately to the south of it the Kresge Building. Across the alley in the rear of the Thalman-Johnson and the Kresge Buildings and facing north on Walnut Street is the Stewart Building. On January 27, 1933, appellant executed four leases, one each to Thalman and Johnson, who together owned the Thalman-Johnson Building, one to the owners of the Kresge Building and one to the Stewart Building covering portions of the basement, first, second, and third floors of that building. All of the leases were for terms of ten years commencing March 1, 1933. At the time the above leases were executed, the Great Atlantic and Pacific Tea Company occupied the balance of the basement and first floor of that Stewart Building and continued to occupy that space until October 2, 1940. Appellant leased the entire Stewart Building from its owners and took over that part of the building formerly occupied by the A & P. The payment of rentals to appellees under such leases provided for a fixed rental per year and a percentage rental based upon net sales, and contained a further provision that entitled the appellant to deduct from the rental paid for appellee's property one-half the rental paid for certain outside premises.

At the original trial of this cause the parties entered into Stipulation #19 which provides as follows: '* * * for the year beginning February 28, 1943, and ending February 28, 1944, defendant has deducted from amounts due from percentage rent, otherwise payable from net sales, the sum of $3,790.81 from the plaintiffs * * * the same representing rental paid by the defendant for said year for the first floor and part of the basement of the Stewart Building above referred to.' Such stipulation was correct as to the amount deducted from rental, but the premises were not correctly described therein inasmuch as the deduction was for rental for the entire Stewart Building and not merely for the first floor and portion of the basement, which was the space formerly occupied by the A & P.

The granting of a new trial on grounds of newly discovered evidence is not a question of law, but largely in the discretion of the...