Schreiber v. Worm

• Decision Date: 29 December 1904
• Docket Number: 20,328
• Citation: 72 N.E. 852,164 Ind. 7
• Parties: Schreiber et al. v. Worm
• Court: Indiana Supreme Court

72 N.E. 852

164 Ind. 7

Schreiber et al. v. Worm

No. 20,328

Supreme Court of Indiana

December 29, 1904

From Superior Court of Marion County (62,030); J. M. Leathers Judge.

Action by Albert R. Worm against Frederick Schreiber and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

Charles A. Dryer and Henry N. Spaan, for appellants.

J. E McCullough, for appellee.

OPINION

Dowling, C. J.

The appellant Schreiber, as principal, and his co-appellants Schaub and Ittenbach, as his sureties, executed to the appellee Worm a bond in a penalty of $ 5,700 to secure the performance by Schreiber of a building contract. The condition of the bond was that the same should be void if Schreiber faithfully furnished the materials and labor and fully erected and completed a two-storied brick business block, with living rooms on the second floor, at No. 1225 and No. 1227 Oliver avenue, in the city of Indianapolis, according to the plans and specifications therefor prepared by an architect, in all respects agreeably to a contract in writing between Schreiber and Worm for the construction of said block, subject to all such modifications, alterations, changes of, additions to, or omissions from, such plans and specifications as should be made agreeably to said contract; and if he held Worm harmless from all claims on account of labor and materials and from all loss, damage, cost, or outlay by reason of the erection of said buildings. The contractor having done work and furnished materials under the contract to a considerable amount, but having failed to complete the buildings according to his agreement, and to pay certain claims for materials furnished, for which liens were taken under the statute, Worm brought his action upon the contract and bond against Schreiber, the contractor, and Schaub and Ittenbach, his sureties, to recover damages for the breaches alleged. Schreiber, the contractor, filed an answer in three paragraphs, the first being a general denial, the second a plea of payment, and the third addressed to so much of the complaint as alleged defects in the work, etc., stating that Worm, the owner, had accepted the work without objection, and was bound by such acceptance. Schreiber also filed a set-off in two paragraphs for extra work, and for an additional $ 200 alleged to have been promised him by Worm on account of a mistake by the architect in reporting to Schreiber the amount of a bid for the brickwork. The sureties, Schaub and Ittenbach, demurred to the complaint, and their demurrers were overruled. They filed a partial answer averring that the work had been accepted by Worm, and that he thereby waived the right to object to it. In addition to this pleading, they filed a general denial, and a further paragraph alleging various deviations from the plans and specifications, and certain alterations and violations of the contract without their knowledge, whereby they claimed to be discharged from their liability on the bond. Replies to all affirmative answers, and to the set-off were filed. The cause was tried by a jury, who returned a verdict for appellee, and, over a motion for a new trial, judgment was rendered on the verdict.

By joint and several assignments of error, the appellants seek to question the sufficiency of the complaint, and the correctness of the ruling of the court upon the several motions for a new trial.

The complaint is not before us, and its supposed defects are not available to the appellants upon any assignment of error. The fifth specification of rule twenty-two of this court requires that the brief of the appellant shall contain "a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript. * * * The statement will be taken to be accurate and sufficient for a full understanding of the questions presented for decision, unless the opposite party in his brief shall make necessary corrections or additions." No such statement of the contents of the complaint is contained in the brief of counsel for these appellants. The only attempt to comply with the rule was the following laconic statement: "The amended complaint, in one paragraph, will be found on pp. 3-11 of the transcript." This memorandum bears no resemblance to the condensed statement of the substance of the complaint contemplated by rule twenty-two. It is at most a copy of a single line of the index to the record. This is not what the rule intends. As applied to cases like this, it requires counsel for the appellant to incorporate in their brief so complete a statement of all the material allegations of the complaint as to be at once concise in form, accurate in details, and sufficient for a full understanding of the question presented without reference to or...