Mueller v. Mueller

• Decision Date: 19 April 1948
• Docket Number: No. 17725.,17725.
• Citation: 118 Ind.App. 274,78 N.E.2d 667
• Parties: MUELLER v. MUELLER et al.
• Court: Indiana Appellate Court

118 Ind.App. 274

78 N.E.2d 667

MUELLER

v.MUELLER et al.

No. 17725.

Appellate Court of Indiana, in Banc.

April 19, 1948.

Appeal from Gibson Circuit Court; A. Dale Eby, Judge.

Action by John C. Mueller against Joseph A. Mueller and others to compel the specific performance of an alleged oral agreement between the plaintiff and his mother whereby she agreed to convey real estate. From an adverse judgment, the plaintiff appeals.

Judgment affirmed. Arthur H. Meyer and W. D. Hardy, both of Evansville, for appellant.

Hatfield, Meyer, Fine & Hatfield and Charles H. Sparrenberger, all of Evansville, for appellees.

DRAPER, Chief Judge.

The appellant brought this action to compel the specific performance of an alleged oral agreement between him and Maud Mueller, his mother, now deceased, whereby she agreed to convey to him certain real estate in Evansville in consideration of his promise to provide a home for her in the property and to take care of the property during her lifetime.

From an adverse judgment he appeals. He assigns as error the overruling of his motion for new trial, and first urges the specification therein to the effect that the decision is contrary to law.

Although not requested so to do, the trial court found the facts specially. We must treat it as a general finding for the appellees. Watson's Revision of Works Practice, Vol. II, § 1586.

Since the decision was negative, or in other words, against the appellant who had the burden of proving his case, the appellant could not and does not seek to attack it on the ground that there is a lack of evidence to sustain it. He can and does, however, assert the decision is contrary to law, which raises the question as to whether the evidence entitled him to relief which was denied him. Wilson, Adm'x, v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905.

We do not think it did. The evidence would amply justify the court in concluding that the appellant had failed to establish the making of a contract so definite and certain in its terms as to be the subject of favor in a court of equity. It would also justify the court in concluding that, even though a sufficient agreement had been made, the appellant never performed it by providing her with the considerate care implicit in such agreements, even during the time his mother remained with him.

The appellant next urges error in the overruling of his motion to strike out certain evidence. In that connection the record discloses the following:

‘Q. ...