Roby v. Pipher
| Decision Date | 06 January 1887 |
| Docket Number | 12,719 |
| Citation | 9 N.E. 604,109 Ind. 345 |
| Parties | Roby v. Pipher et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Feb. 1, 1887.
From the Harrison Circuit Court.
The judgment is reversed with costs, and the cause is remanded with instructions to sustain the motion for a new trial, and for further proceedings.
G. W Self, W. N. Tracewell and R. J. Tracewell, for appellant.
W Cook, for appellees.
In this case, the appellant, Roby, the plaintiff below, substantially alleged in his complaint that he had sold the appellees six hundred saw-logs at the agreed price of $ 1.50 per log, amounting in the aggregate to the sum of $ 900; that, of this sum, appellees had paid him $ 547.50, leaving a balance of $ 352.50 still due him from appellees and wholly unpaid. Wherefore, etc.
Appellees answered by a general denial of the complaint, and a plea of payment, to which appellant replied by a general denial. The issues joined were tried by the court, and a finding was made for appellees, the defendants below; and over appellant's motion for a new trial, the court adjudged that he take nothing by his suit, and that appellees recover of him their costs herein.
The only error assigned here by appellant is the overruling of his motion for a new trial. The causes assigned for such new trial were, that the finding of the court was not sustained by sufficient evidence, and was contrary to law.
Appellant had the burden of the issue joined on his complaint, while the appellees had the burden of the issue joined on their plea of payment. It was shown by appellant on the trial, that appellees bought of him the logs mentioned in his complaint, under the terms of a written contract executed by them. We set out so much of this contract as applies to this case, as follows:
By an abundance of uncontradicted evidence, appellant further showed that, long before the commencement of this suit, he had cut down "all the poplar, oak and hickory timber on * * * the Home Place," and that such timber made about six hundred "logs," within the meaning of appellees' contract. So that, if the issue joined by the answer in denial of the complaint had been the only issue in this case for trial, it is very clear, we think, that appellant would have been entitled to a finding and judgment for the full amount of his claim herein.
We come now to the consideration of the issue joined on appellees' plea of payment, as to which issue, as we have already said, the burden was on them to sustain it by the evidence. There was a failure of evidence, we think, to sustain the plea of payment. This evidence...
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