Rawlings v. Vreeland
| Citation | 127 N.E. 786,76 Ind.App. 209 |
| Decision Date | 15 June 1920 |
| Docket Number | 10,110 |
| Parties | RAWLINGS v. VREELAND ET AL |
| Court | Court of Appeals of Indiana |
Rehearing denied November 18, 1920.
Transfer denied June 28, 1921.
From Porter Superior Court; Harry L. Crumpacker, Judge.
Action by Wilbur L. Rawlings against Frank Vreeland and another. From a judgment for defendants, the plaintiff appeals.
Affirmed.
Harry B. Tuthill and Walter C. Williams, for appellant.
Grant Crumpacker, Cornelius R. Collins and Jeremiah B. Collins, for appellees.
This is an action by appellant against appellees on an account. The complaint on which the cause was tried is in a single paragraph and alleges in substance, among other things, that between July 1, 1914, and June 15, 1915, appellant sold and delivered to appellee, Barton, a large amount of coal and coke of the value of $ 1,500, and that for a valuable consideration, appellee Vreeland promised to pay appellant one-half of sale price and value thereof; that the consideration moving to said appellee Vreeland, for his said promise to appellant is, that prior to the making of said promise, the said Vreeland had leased to said Barton a certain hotel building in Michigan City, Indiana, known as the Vreeland Hotel, and had sold him certain furnishings therein; that said Vreeland agreed to make certain improvements on said hotel building, which included the installation of a hot water heating plant therein; that the said Vreeland, having failed to install said heating plant, and to make the other improvements theretofore agreed upon, entered into another arrangement with said Barton on September 1, 1914, whereby said Vreeland agreed that in consideration of being released from installing said heating system and making said other improvements until the summer of 1915, he, the said Vreeland would pay one-half of the sale price and value of whatever coal and coke the said Barton should purchase in the management and control of said hotel; that on October 1, 1914, said Barton made known to appellant the said promise theretofore made to him by said Vreeland, with reference to paying one-half of the sale price and value of said coal and coke; that relying on said promise, appellant did sell and furnish for consumption in said hotel a large quantity of coal and coke for the price and of the value of $ 1,500, as shown by an exhibit filed therewith and made a part thereof; that on October 15, 1914, said Vreeland promised appellant that he would pay him one-half the value and sale price of all coal and coke which appellant had, and in the future would sell and deliver to said Barton for use in said hotel; that appellant then and there accepted the promise of said Vreeland so made as aforesaid, and in reliance thereon delivered to said Barton the said coal and coke for use in said hotel. Demand for judgment in the sum of $ 750 and interest. Appellee, Barton, filed an answer, in which he admitted that he bought the fuel mentioned in the complaint; that his coappellee agreed to pay one-half of the price thereof, for the consideration alleged in the complaint, and asked that appellant be given judgment against his coappellee for $ 750, and that he have all proper relief. Appellee, Vreeland, filed an answer in general denial, and also a cross-complaint against appellant and his coappellee, in which it is alleged in substance, among other things, that the cross-complainant on July 8, 1914, leased to appellee, Barton, certain real estate known as the Vreeland Hotel for the sum of $ 325 payable monthly in advance, a copy of said lease being filed therewith as an exhibit and made a part thereof; that said Barton took possession of said hotel on said date and occupied the same for a long time thereafter, but failed to pay the rent therefor from October 1, 1914, until May 22, 1915, and still owes the same; that cross-complainant agreed with said Barton to install a heating plant in said hotel and to make certain other improvements therein, all of which were done, except the installation of the heating plant; that a subsequent arrangement was made whereby the said Barton agreed that the cross-complainant should allow him, as a credit upon the rent for said hotel, a sum equal to one-half the amount expended by said Barton in the purchase of coal consumed in heating said hotel; that said credit was to be given when the amount thereof was ascertained; that the coal purchased by said Barton and used in heating said hotel is the identical coal for which appellant is seeking to recover a judgment in this action, and that said Barton is entitled to a credit on his rent account to the cross-complainant for one-half of said amount; that appellant is claiming some interest in said rental credit due the said Barton, which is without right and is made a party to answer as to any such interest; that said Barton is indebted to the cross-complainant in the sum of $ 2,500 on account of rent due for said hotel, less the credit due him on account of the amount expended for coal used in heating said hotel. Demand for judgment against said Barton for $ 2,000. This cross-complaint was answered by a general denial by each of the defendants thereto. The cause was submitted to a jury for trial, and at the close of appellant's evidence appellee, Vreeland, moved the court to instruct the jury to return a verdict in his favor, and tendered the following instruction for that purpose, "Gentlemen of the jury: Under the evidence in this cause, I instruct you to find for the defendants." The court thereupon gave said instruction to the jury, and in pursuance thereof the jury returned the following verdict into open court: "We the jury find for the defendants." Appellant filed a motion for a new trial, which was overruled, and thereupon the court, on motion of appellee Vreeland, rendered judgment upon the verdict as follows: "It is therefore considered and decreed by the court that the plaintiff take nothing by his complaint herein, and that the defendant recover of and from the plaintiff all their costs and charges herein paid and expended, taxed at $ ." From this judgment appellant has appealed, and has assigned the action of the court in overruling his motion for a new trial as the sole error on which he relies for reversal.
Appellee contends that this appeal cannot be maintained because the judgment does not dispose of all the issues in the cause. It will be observed that issues were joined on the complaint of appellant, and on the cross-complaint of appellee Vreeland. It is clear that the judgment disposes of all the issues made on the complaint, so that appellee's...
To continue reading
Request your trial