Scott v. Congdon
| Decision Date | 21 April 1886 |
| Docket Number | 11,887 |
| Citation | 6 N.E. 625,106 Ind. 268 |
| Parties | Scott et al. v. Congdon |
| Court | Indiana Supreme Court |
From the White Circuit Court.
The judgment is affirmed, with costs.
A. W Reynolds, E. B. Sellers and D. D. Dale, for appellants.
R Gregory and W. E. Uhl, for appellee.
This was a suit by the appellee against the appellants, in a complaint of four paragraphs. It appears from the complaint that the appellants, as partners, were engaged in the construction of what is called the "Breckbill Gravel Road," in White county. In the first, third and fourth paragraphs of his complaint the appellee alleged that appellants had entered into a special verbal contract with him, whereby he undertook and agreed with them to grade seven miles of such gravel road, and they agreed to pay him therefor a specified price per cubic yard for excavation and embankment; that he was able, ready and willing to perform his part of such contract; but that appellants had prevented him from doing and performing the work he had contracted to do, to his damage, etc. The second paragraph of his complaint was a common count for so much money due the appellee, for work and labor done and performed by him, at the special instance and request of the appellants, whereof a bill of particulars was therewith filed.
The cause was put at issue and tried by a jury, and a verdict was returned for appellee, and, over appellants' motion for a new trial, the court rendered judgment on the verdict.
In this court the only matters complained of by appellants' counsel, as affording any grounds for the reversal of the judgment, are such as arise under the alleged error of the trial court in overruling the motion for a new trial. The other errors assigned by appellants, therefore, need not be further noticed.
The first point insisted upon in argument on behalf of the appellants is, that the trial court erred in admitting in evidence, over their objections, a conversation between the appellant McCollum and the appellee, during which conversation it was agreed by and between them that appellee was to do the first two miles of grading on the Breckbill Gravel Road, and was to receive therefor one hundred dollars per month while so engaged. It is claimed by appellants' counsel that this evidence was incompetent, because they say that for such work appellee had not sued upon appellants' special agreement to pay him therefor one hundred dollars per month, but in the common count for work and labor done. We think, however, that upon the issue joined on such common count the evidence objected to was clearly competent, as tending to show the...
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