State ex rel. Romona Oölitic Stone Co. v. Cent. States Bridge Co.

• Citation: 49 Ind.App. 544,97 N.E. 803
• Decision Date: 06 March 1912
• Docket Number: No. 7,502.,7,502.
• Parties: STATE ex rel. ROMONA OÖLITIC STONE CO. v. CENTRAL STATES BRIDGE CO. et al.
• Court: Court of Appeals of Indiana

49 Ind.App. 544

97 N.E. 803

STATE ex rel. ROMONA OÖLITIC STONE CO.

v.CENTRAL STATES BRIDGE CO. et al.

No. 7,502.

Appellate Court of Indiana, Division No. 1.

March 6, 1912.

Appeal from Superior Court, Marion County; C. E. Weir, Judge.

Action by the State, on the relation of the Romona Oölitic Stone Company, against the Central States Bridge Company and others. From a judgment for plaintiff for partial relief, it appeals. Affirmed.

W. H. H. Miller, C. C. Shirley, and Samuel D. Miller, for appellant. Charles W. Smith, John S. Duncan, Henry H. Hornbrook, and Albert P. Smith, for appellees.

FELT, C. J.

This action was brought by appellant against the Central States Bridge Company upon a contract with said company for certain material and labor in the construction of a bridge. Appellee the bridge company had a contract with Marion county, Ind., to build said bridge, and gave bond to the county with appellee National Surety Company as surety. This suit is also upon the bond.

Various pleadings were filed, and the case tried, by the court, who, upon request, made a special finding of facts and stated as conclusion of law thereon that appellant was entitled to recover the sum of $2,362.36. Appellant filed a motion for a new trial, which was overruled. Judgment was rendered upon the finding, and this appeal taken.

The errors assigned and presented for reversal are that the court erred in (1) its conclusions of law on the finding of facts; (2) overruling the motion for a new trial.

The court found, in substance, that the appellant and each of the appellees were regularly organized corporations; that the Central States Bridge Company entered into a contract with Marion county, Ind., for the construction of the Emerichsville Bridge; that the appellees executed the bond in question for the performance of said contract; that appellant entered into a contract with appellee Central States Bridge Company to furnish stone for the construction of said bridge; that on the general contract there is due appellant the sum of $2,383.50. The court then sets out numerous evidentiary facts as to various items of charges and credits disputed by the parties, and as ultimate facts finds that appellant is entitled to recover of appellees the further sum of $37.58 for extras furnished on the order of appellee Central States Bridge Company, and that appellees are entitled to a credit of $271.14.

Upon this finding of facts, the court stated its conclusions of law to be that appellant was entitled to recover from appellees the sum of $2,421.06, less the amount due appellees under the set-off, $271, leaving a net balance of $2,150.06, to which the court added interest from May 23, 1907, to January 19, 1909, in the sum of $212.30, and stated the total amount due to be $2,362.36.

[1] By excepting to the conclusions of law, appellant admits, for the purpose of this assignment of error, that the facts are fully and correctly found. Stults v. Nelson, Cheesman & Co., 97 N. E. 21. The facts found fully warrant the conclusions of the trial court.

The motion for a new trial was based on alleged error (1) in assessing the amount of recovery, which was too small; (2) the decision of the court is not sustained by sufficient evidence; (3) the decision is contrary to law; (4) error in admitting each of Exhibits 37 and 52, respectively.

[2] An examination of the evidence in the record demonstrates that there is evidence from which the court may have properly found the facts as stated, and in this situation we cannot, under well-recognized and long-established rules, weigh the evidence, but must accept the finding of the lower court, unless the same is based on evidence improperly admitted, as alleged in appellant's motion for a new trial.

Appellee's third paragraph of answer was addressed to the first paragraph of the complaint by way of set-off. This answer proceeded upon the theory that appellant furnished stone to appellee that did not comply with the contract and specifications, and appellee was compelled to do and cause to be done certain work thereon before the same could lawfully be used by it in constructing the bridge; that appellant shipped certain stone to the appellee unprepared for use, and desired to shape and carve the same at or near the bridge; that at the request of appellant appellee bridge company did work in preparing grounds, appliances, and sheds necessary for that purpose, and also furnished certain labor in handling said stone; that a bill of particulars thereof was made and filed with the answer, and demand made that the amount thereof be set off against any sum found due the appellant.

[3] Appellant earnestly insists that there is no proof of the value of either labor or material alleged to have been so furnished; that the Exhibit No. 52 made up of loose-leaf sheets from appellee's ledger and covering the items allowed by the court as a set-off, were improperly admitted in evidence; the specific objections being that the same was not the best evidence, was hearsay, and not a part of the res gestæ. The evidence preliminary to the introduction of the sheets from the ledger showed, without serious conflict, that one Mr. Dudley was at the time bookkeeper for appellee bridge company, on the job of building the bridge in question; that other employés of appellee had charge of the work and material mentioned in the set-off; that the time of the laborers and other items of the account were from day to day, by the men so in charge of the work, turned in to the bookkeeper; that he entered the items in the book offered in evidence as the same were so reported to him; that all the men, including the bookkeeper, connected with this part of the work were instructed to keep separate account of the time, material, and other charges connected therewith; that the sheets offered in evidence were from the book so kept by Mr. Dudley, the bookkeeper; that the entries offered were in his handwriting; that Mr. Dudley was out of the state “in Oklahoma or Indian Territory, or that section of the country, some place in the employ of a railroad.”

Appellant asserts that the account so kept and identified is the book of appellee, and not admissible in evidence on its own behalf. In support of this contention, it cites: Pittsburg, etc., Co. v. Noel, 77 Ind. 121;First National Bank v. Williams, 4 Ind. App. 501, 31 N. E. 370;Dodge v. Morrow, 14 Ind. App. 535, 41 N. E. 967, 43 N. E. 153;Wilber v. Scherer, 13 Ind. App. 428, 41 N. E. 837;Over v. Dehne, 38 Ind. App. 427, 75 N. E. 664, 76 N. E. 883;Cleveland, etc., Co. v. Coffman, 30 Ind. App. 467, 64 N. E....