Peden v. Scott

• Decision Date: 28 April 1905
• Docket Number: 5,181
• Citation: 73 N.E. 1099,35 Ind.App. 370
• Parties: PEDEN ET AL. v. SCOTT ET AL
• Court: Indiana Appellate Court

73 N.E. 1099

35 Ind.App. 370

PEDEN ET AL. v. SCOTT ET AL

No. 5,181

Court of Appeals of Indiana

April 28, 1905

From Huntington Circuit Court; James C. Branyan, Judge.

Action by Charles R. Scott and another against Hiram V. Peden and another. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Lesh & Lesh, for appellants.

Spencer & Branyan, for appellees.

OPINION

BLACK, J.

In the complaint of the appellees against the appellants, after preliminary averments, it was alleged that the latter were indebted to the former in a specified sum for goods and merchandise sold and delivered to the appellants at their special instance and request, a bill of particulars of which it was alleged, was filed with and made part of the complaint, and that a specified sum was due and unpaid. Wherefore, etc. The bill of particulars was an account for "Merchandise, consisting of a monument, bases, etc namely, the Adam Q. Kenover monument, $ 350; interest on same from April 30, 1903, to September 15, 1903, $ 8; total, $ 358." Issues formed were tried by a jury, who rendered a general verdict for $ 350 in favor of the appellees, and returned answers to interrogatories.

The motion of the appellants for judgment in their favor on the answers to the interrogatories, notwithstanding the general verdict, having been overruled, it is contended that this ruling was erroneous, because by the answer to one of the interrogatories the jury specially found that the appellees agreed, by a written contract, set forth, to furnish a monument to the appellants, said contract being an order signed by the appellants, describing the monument, and stating conditions under which it would be furnished, the price ($ 350) and time of payment.

1. It is claimed on behalf of the appellants, in effect, that there could be no recovery under such a complaint upon proof of such a written contract. Where there has been full performance on the part of the plaintiff of a special contract, so that the price in money for such performance, stipulated in the contract, is due to the plaintiff by its terms, though the action for such price may be based upon the special contract, yet this is not necessary; for it is settled that in such case indebitatus assumpsit will lie for the recovery of the stipulated price, and the plaintiff may use the special written contract as evidence of the amount due. Such action upon the common count proceeds upon the theory that, the plaintiff having fully performed on his part, a duty has arisen on the part of the defendant to pay the stipulated price, and a new cause of action, at the option of the plaintiff, may be based upon the nonperformance of this legal duty, wherein the stipulated price is the quantum meruit. It is useless to question here whether this rule of pleading is contemplated by the code or logically consistent with the principles of the reformed procedure, for it is established by the decisions that it is allowable under the code. See Farron v. Sherwood (1858), 17 N.Y. 227; Hosley v. Black (1863), 28 N.Y 438; Higgins v. Newtown, etc., R. Co. (1876), 66 N.Y. 604; Kerstetter v. Raymond (1858), 10 Ind. 199; Brown v. Perry (1860) 14 Ind....