Shores-Mueller Company v. Best

• Decision Date: 19 February 1918
• Docket Number: 9,506
• Citation: 118 N.E. 688,66 Ind.App. 649
• Parties: SHORES-MUELLER COMPANY v. BEST ET AL
• Court: Indiana Appellate Court

118 N.E. 688

66 Ind.App. 649

SHORES-MUELLER COMPANY v. BEST ET AL

No. 9,506

Court of Appeals of Indiana

February 19, 1918

From Allen Superior Court; Carl Yaple, Judge.

Action by the Shores-Mueller Company against Benjamin Best and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Lesh & Lesh, Ralph Dunkleberg and Breen & Morris, for appellant.

John H Aiken, Bowers & Feightner and J. C. Murphy, for appellees.

OPINION

BATMAN, P. J.

This is an action by appellant to recover a sum of money alleged to be due it for merchandise furnished appellee Marquiss under an alleged written contract, by the terms of which appellees Best, Pollock and Deardurff guaranteed the payment of the same. The complaint is in usual form, the contract of purchase between appellant and appellee Marquiss and the contract of guaranty between appellant and the other appellees being made parts thereof by exhibits. The latter contract, bearing the names of appellees Best, Pollock and Deardurff, in part, is as follows:

"In consideration of Shores-Mueller Company extending credit to the above named person we hereby guarantee to it, jointly and severally, the honest and faithful performance of the said contract by him waiving notice of acceptance and all notices including notice of salesman's default, and agree that any extension of time or change of territory shall not release us from liability hereon. In consideration of one dollar in hand paid to the salesman, the receipt whereof is hereby acknowledged and an extension of time, we also guarantee to it the full and complete payment of all goods medicines, etc., heretofore purchased by the salesman of the Shores-Mueller Company (formerly Shores Farm Remedy Company). Amount Eleven Hundred and Twenty-three and Ninety-eight one-hundredths Dollars ($ 1,123.98)."

Appellee Marquiss did not file an answer, but the remaining appellees filed separate answers of non est factum. The case was tried by a jury resulting in a verdict against appellee Marquiss for $ 1,123.98, and in favor of appellee Best Pollock and Deardurff. Judgment was rendered accordingly. Appellant filed a motion for a new trial, which was overruled, and has assigned such ruling in this court as the sole error on which it relies for reversal. Appellant bases its right to a new trial on the alleged reasons that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law, and that the court erred in the admission and exclusion of certain evidence.

Appellant earnestly contends that the judgment in this case should be reversed on the evidence. They have presented evidence from the record which would tend strongly to support their contention if we were permitted to weigh the evidence and thereby determine its preponderance. However, such is not the province of this court on appeal, where there is conflicting parol evidence on a material issue. Under such circumstances the only question we are called upon to determine in that regard is whether there was any evidence to sustain the verdict of the jury. This is true, although such evidence may be strongly contradicted and not entirely satisfactory. Thompson v. Beatty (1908), 171 Ind. 579, 86 N.E. 961; Warner v. Jennings (1909), 44 Ind.App. 574, 89 N.E. 908; Hollingsworth v. Hollingsworth (1911), 50 Ind.App. 137, 98 N.E. 79; Monongahela, etc., Coke Co. v. Walts (1913), 56 Ind.App. 235, 105 N.E. 160; Public Utilities Co. v. Cosby (1915), 60 Ind.App. 252, 110 N.E. 576. The chief contention in this case is on the issue raised by the plea of non est factum, filed by appellees Best, Pollock and Deardurff. Over against the evidence produced by appellant on this issue stands the denial of each of such appellees as to his signature to the contract of guaranty in suit, and also some evidence tending to prove that the contract itself had been changed since its alleged signing by appellees. The weight of such evidence was for the determination of the jury in the first instance, and afterwards for the court in ruling on the motion for a new trial, and since there was some evidence to sustain the verdict we are bound thereby.

Appellant contends that the court erred in striking out certain evidence given by the witness Kampmeier. This witness was called by it, and asked on direct examination, in substance, whether Mr. Deardurff, on a certain occasion, denied his signature to the contract in question, or stated that it had been altered or changed in any way since he signed it. The witness answered "No, he did not, although I do not remember that he expressly admitted signing it, he in no way signified that it was not his contract." On motion of appellees all of such answer except the words, "No, he did not," was stricken out over appellant's objection. This was not error, as the part stricken out was clearly a conclusion, and not responsive to the question asked.

Appellant also contends that the court erred in admitting certain evidence. The first relates to that of the witness Marquiss who was called by appellant, and testified on direct examination that appellees Best, Pollock and Deardurff had signed appellant's exhibit "B," being the alleged contract of guaranty in suit. The court then permitted appellees over appellant's objection to ask the witness on cross-examination, in substance, whether he knew or understood, at the time of the signing of such contract, that it was a guaranty for any sum of money he owed appellant at that time. The question asked is not clear, but we assume that it was an inquiry regarding the witness' knowledge of the contents of the contract in question. When so considered there was no error in the court's ruling. It should be noted that appellees were defending under an answer of non...