National Hame and Chain Company v. Robertson

• Decision Date: 15 March 1928
• Docket Number: 12,837
• Citation: 161 N.E. 851,90 Ind.App. 556
• Parties: NATIONAL HAME AND CHAIN COMPANY v. ROBERTSON
• Court: Indiana Appellate Court

161 N.E. 851

90 Ind.App. 556

NATIONAL HAME AND CHAIN COMPANY v. ROBERTSON

No. 12,837

Court of Appeals of Indiana

March 15, 1928

Rehearing denied June 19, 1928. Transfer denied January 7 1930.

From Jefferson Circuit Court; Edward S. Roberts, Judge.

Action by William F. Robertson against the National Hame and Chain Company. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Charles D. Kelso, Louis B. Ewbank and P. J. Lauck, for appellant.

George H. Hester, for appellee.

MCMAHAN J. Dausman, J., absent.

OPINION

MCMAHAN, J.--

Appellee, as the alleged owner and seller of a carload of soft steel bands, brought this action in the Floyd Circuit Court to recover the price thereof. The complaint is in four paragraphs. The first paragraph is for goods and merchandise alleged to have been sold to appellant. The second paragraph alleges that appellant agreed to purchase the steel "at the price prevailing at the mill" where manufactured, and sets out certain correspondence which it is claimed constituted the contract; that the steel was shipped to appellant and accepted by it. The third paragraph is similar to the second. The fourth paragraph alleges that appellee is a broker in iron and steel products; that appellant is a manufacturer of hames and chains; that appellant authorized appellee to furnish it with a carload of soft steel bands for use in its business; that thereafter, and before the steel was delivered, appellee notified appellant he would sell and deliver the steel to appellant at a later date in the same year, the price to be that of the official schedule of the mill by which it was made at the time of shipment; that appellant agreed to pay the price so quoted by appellee, but that, later and before the delivery thereof, appellant notified appellee it would only pay therefor the price ruling at the date of shipment; that appellee refused to sell and deliver for the price proposed by appellant, but notified appellant the price was to be the official schedule of the mill manufacturing the same at date of shipment; that thereafter appellee delivered the car of steel to appellant; that appellant received, accepted and used the same, well knowing the terms upon which the same was sold to it by appellee and knowing the price appellant would be expected to pay therefor; that, according to the official schedule of the mill, the price was $ 5.80 per 100 pounds; that the steel so sold and shipped and accepted by appellant weighed 50,020 pounds; that there had been a long and vexatious delay in payment, and demanding judgment for the purchase price with interest.

Appellant filed a motion to strike out parts of the third paragraph of complaint, and appellee filed a demurrer to the fourth paragraph of appellant's answer to the second paragraph of complaint. The issues of law thus submitted were taken under advisement, and, not being determined within 90 days thereafter, appellee filed his written application calling the attention of the regular judge to the failure to determine the issues so presented, and asking that such issues be withdrawn from such judge and that a special judge be appointed, as provided for in § 603 Burns 1926. This application was sustained, and a special judge appointed. The venue was afterwards changed to Jefferson county. The court, on request, found the facts specially and stated its conclusions of law thereon. There was a judgment in favor of appellee for $ 3,832.43.

The errors assigned in this court are that the court erred: (1) In sustaining appellee's application to withdraw the issues of law from the regular judge and in appointing a special judge; (2) in sustaining appellee's demurrer to the fourth paragraph of answer to the third and fourth paragraphs of complaint; (3) in each conclusion of law; and (4) in overruling appellant's motion for a new trial.

Appellee insists that no question is presented concerning the action of the regular judge in appointing a special judge, or the action of the special judge in refusing to remand the cause to the regular judge. It is appellee's contention that such rulings should have been assigned as reasons for a new trial, and not as independent assignments of error in this court.

Section 420 of the Civil Code, § 610 Burns 1926, cl. 1, provides that a new trial may be granted for "Irregularity in the proceedings of the court, jury, or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial."

The application to withdraw the issues from the regular judge was the same, in principle and effect, as a motion and affidavit for a change of judge, and it is well settled that the action of the court in sustaining or in overruling an application for a change of judge or for a change of venue must be assigned as a ground in the motion for a new trial if the party is in a position to file such a motion, and, if not assigned, it is waived. Scanlin v. Stewart (1894), 138 Ind. 574, 37 N.E. 401, 38 N.E. 401; Southern R. Co. v. Roach (1906), 38 Ind.App. 211, 78 N.E. 201. And we hold that appellant, having failed to assign the rulings of which complaint is made as grounds for a new trial, cannot present them on appeal by an independent assignment of errors. If this were not so, we would be compelled to transfer this appeal to the Supreme Court for want of jurisdiction, as it is appellant's contention that the provision of said § 603, supra, requiring the trial court to decide all issues of law within 90 days from submission, is unconstitutional.

The fourth paragraph of answer to which a demurrer was sustained alleged that, before the commencement of this action, appellee claimed he shipped the steel to appellant under its written order of May 14, 1920, which is set out in full; that, after the commencement of the action, appellee undertook to change his claim against appellant by alleging in the third paragraph of the complaint that he shipped the steel to appellant under a contract made up by a letter from appellee to appellant, dated May 12, 1920, and appellant's acceptance thereof; and that, by his fourth paragraph of complaint, appellee sought to change his position by claiming there was no contract except an implied contract on the part of appellant to pay a named sum.

In support of this contention, appellant says: "Where a party gives a reason for his conduct and decision touching any matter involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by settled principles of law," and that the facts alleged in the third and fourth paragraphs of complaint as grounds for recovery are entirely different from the grounds upon which appellee claimed appellant was liable to him before the commencement of the action.

In Cadick Milling Co. v. Valdosta Grocery Co. (1920), 72 Ind.App. 534, 126 N.E. 240, cited by appellant, the appellee sued the appellant for damages on account of the breach of an alleged contract by which appellee purchased certain flour of appellant. Appellant claimed it was justified and excused from shipping the flour on the ground that appellee gave no shipping directions. When appellant was called upon to ship the flour, it refused to do so solely on the ground that the contract had expired by limitation. In this connection, the court said: "In view of this fact appellant may not, after suit is brought for a breach of the contract, change from its former position, and base its refusal to ship such flour on another and different ground. . . . It follows as a matter of course that, after appellant had repudiated the contract by declaring that it had expired by limitation, it was not incumbent on appellee thereafter to furnish further shipping specifications and instructions."

Kenefick v. Schumaker (1917), 64 Ind.App. 552, 116 N.E. 319, was an action for damages because of a breach of a contract to convey real estate, where the defendant refused to perform because the abstract of title "did not show a clear title." When sued, the defendant undertook to defend because of the plaintiff's failure to deliver possession of certain property to the defendant. It was held that the defendant had waived the breach of the contract occasioned by the delay in obtaining possession, the court, at page 561, saying: "It is well established that a party to a contract, in refusing to comply with its terms, cannot base his refusal on one ground and, when action is brought for its breach, defend on another and different ground."

In each of the other cases cited by appellant, the defendant had given one ground as an excuse for his failure to comply with the contract, and, when sued, had set up a different ground as reason for such refusal. Clearly none of the cases cited is of any controlling influence in the instant case.

It was not necessary for appe...