Newton v. Donnelly
| Decision Date | 06 March 1894 |
| Docket Number | 1,056 |
| Citation | 36 N.E. 769,9 Ind.App. 359 |
| Parties | NEWTON ET AL. v. DONNELLY |
| Court | Indiana Appellate Court |
From the Madison Circuit Court.
Judgment reversed.
W. A Kittinger, L. M. Schwinn and H. D. Thompson, for appellants.
E. D Reardon, J. R. Thornburgh, E. B. Goodykoontz and G. M Ballard, for appellee.
The appellee's complaint in this action was in two paragraphs. The appellants jointly and severally demurred to each paragraph of the complaint, which demurrers were overruled and exceptions reserved. This ruling the appellants have jointly and severally assigned as error.
The first paragraph is a declaration on an open account for $ 250, for services rendered the appellants by the appellee, in the sale of certain real estate for them at their special instance and request, a bill of particulars of which is set out, stating that the appellants are indebted to the appellee for "services rendered in selling and making sale of their real estate in the city of Anderson, Ind., to Dr. W. A. Gabbert--$ 250."
It is averred that this sum is due and wholly unpaid, and a judgment is demanded for $ 300.
No defect is pointed out as to this paragraph, and we think it states a substantial cause of action against both appellants.
In the second paragraph, it is alleged that appellee was a real estate broker, and that, sometime in the year 1891, the appellants employed and contracted with him to sell for them the real estate described, being a house and lot in Anderson, Ind.; that in consideration of said appellee's selling said real estate for the appellants, at and for the price of $ 5,000, on the terms following, viz, $ 1,000 cash, at the time of the execution of the deed by the appellants to the purchaser, and the remainder in annual installments of $ 1,000 each, to be evidenced by the notes of the purchaser to the appellants, secured by mortgage on said real estate, the appellants promised to pay the appellee the sum of $ 250 for the services of making such sale for them.
It is further averred that afterwards, on the 14th day of July, 1891, the appellee, in pursuance of said contract and agreement with appellants, sold said real estate to one William A. Gabbert, for the sum of $ 5,000, and upon the terms aforesaid; and that said Gabbert and the appellants entered into a written contract on said day, by the terms of which the appellants agreed to sell, and said Gabbert agreed to buy, said real estate as aforesaid; that afterwards, the appellants whosly refused to perform or carry out said contract with said Gabbert, or make a deed of said real estate to him; and that the appellants have failed and wholly refused to pay the appellee the said sum of $ 250, or any part thereof, as agreed upon, although requested to do so; and that said Gabbert was at all times ready, willing and able, and had the means to carry out and perform his part of said written contract with the appellants; that said sum of $ 250 is now due and wholly unpaid. Wherefore, etc.
The appellants object to this paragraph, because it fails to state that Gabbert agreed to purchase the real estate for $ 5,000, or that he ever, at any time, had the $ 1,000 in cash, or that he ever executed, or agreed to execute, his notes with a mortgage upon said real estate.
The objection to this complaint is not well taken. The averment that the appellants sold the real estate to Gabbert for $ 5,000, and "upon the terms aforesaid," covers all the details as to said terms, and it was not necessary that each item of such terms of payment should be repeated. The demurrer was properly overruled.
Error is specified upon the overruling of the appellants' motion for a new trial. One of the grounds of the motion was alleged error occurring at the trial in permitting the appellee Donnelly to testify to the contents of a telegram received by him from the appellant Edward E. Newton, and another in permitting said Donnelly to give in evidence his recollection of the contents of a letter which the appellee wrote to said Edward E. Newton relative to the sale of the property. The basis of the objections was that the telegram and letter furnished the best evidence of their contents, and that no sufficient preliminary proof had been made to admit of secondary evidence.
Donnelly testified, in chief, that he had given the telegram to Dr. Gabbert; that he searched for it through all his (Donnelly's) papers and desk and safe, and went to the telegraph office to get a copy; that he thought he had not destroyed the telegram. On cross-examination, he stated that he did not know that he gave the telegram to Dr. Gabbert, and with this preliminary proof he was permitted to give its contents.
As to the letter, Donnelly testified that in reply to the telegram he wrote Newton a letter. What he did with the letter, and if he sent it to Newton, whether he did so by due course of mail, duly stamped, or by private messenger, does not appear from his testimony.
Edward E. Newton was here called to the stand, in behalf of appellee, and asked if he...
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Glaser v. Williamsburg City Fire Ins. Co., 10211.
...could not have been heard, for no steps preliminary to its introduction had been taken. Home Ins. Co. v. Marple, supra; Newton v. Donnelly, 9 Ind. App. 363, 36 N. E. 769. Other objections need not be considered. There being no evidence of waiver of proof of loss, and no evidence of the rece......
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Glaser v. Williamsburg City Fire Insurance Company
... ... have been heard, for no steps preliminary to its introduction ... had been taken. Home Ins. Co. v. Marple, ... supra; Newton v. Donnelly ... (1893), 9 Ind.App. 359, 363, 36 N.E. 769. Other objections ... need not to be considered ... There ... ...
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Jenkins v. Lutz
... ... collateral [26 Ind.App. 152] matter but went to the substance ... of appellee's right of action. Its admission was error ... Newton v. Donnelly, 9 Ind.App. 359, 36 N.E ... 769; McFadden v. Ross, 14 Ind.App. 312, 41 ... N.E. 607 ... In the ... deposition of ... ...
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Kelsch v. Eldridge
...been given to the appellant to produce it at the trial and he failed to do so. Sec. 2-1644, Burns' 1946 Replacement; Newton v. Donnelly, 1894, 9 Ind.App. 359, 36 N.E. 769. In admitting this evidence the trial court said: ‘All I want to do is to get to the truth of it. I am going to allow th......