Stockwell v. Whitehead

• Decision Date: 07 April 1911
• Docket Number: No. 7,195.,7,195.
• Citation: 47 Ind.App. 423,94 N.E. 736
• Parties: STOCKWELL v. WHITEHEAD.
• Court: Indiana Appellate Court

47 Ind.App. 423

94 N.E. 736

STOCKWELL

v.WHITEHEAD.

No. 7,195.

Appellate Court of Indiana, Division No. 2.

April 7, 1911.

Appeal from Superior Court, Vanderburgh County; R. Gilchrist, Judge.

Action by Bennett Whitehead against Mary S. Stockwell. From a judgment for plaintiff, defendant appeals. Affirmed.William Reister, for appellant. John W. Spencer, John R. Brill, and Frank H. Hatfield, for appellee.

IBACH, J.

This suit was brought in the lower court by Bennett Whitehead, appellee, against Mary S. Stockwell, appellant, to recover the amount of a subscription for the improvement of a public road in Vanderburgh county, Ind., known as Slaughter avenue, for which improvement appellant and a large number of other persons agreed to donate certain amounts set opposite their respective names upon a certain subscription list or paper. All the subscribers paid the amounts donated except appellant, who, it appears, signed the amount of $300, and upon her refusal to pay this suit was brought. The agreement sued upon, which was made a part of the complaint and marked “Exhibit A,” is, exclusive of names and amounts, as follows: “It being the desire of the property owners abutting on and near Slaughter avenue, and others interested in the improvement of Slaughter avenue, to improve, with broken rock, said road, beginning at the city limits and to extend at least one mile out, we, the undersigned, agree to pay James Genter, collector and treasurer, for such funds as may be subscribed, to be, in turn, paid by said Genter to the trustee of Knight township, the amounts set opposite our names, one-half of amounts subscribed to be paid in thirty days and one-half within sixty days from the date the whole amount is subscribed. All moneys paid to said Genter and trustee of Knight township to be used only for the improvement of the stretch of road above mentioned. The county commissioners agree to receive the road when completed and keep it in repair.” Appellee alleged in his complaint “that by the terms of this agreement the appellant agreed to pay to the trustee of Knight township for the use and benefit of whomsoever would construct and improve a certain part of Slaughter avenue with broken rock the sum of $300”; that there were a number of abutting property owners who subscribed amounts set opposite their respective signatures for such purpose; and that these subscribers appointed one Louis Weinsheimer, the trustee of Knight township, Vanderburgh county, Ind., as their agent to contract for the construction of a rock road in accordance with said agreement and petition. A copy of this contract is made a part of the complaint, and is marked “Exhibit B.” Upon the overruling of appellant's demurrer to the complaint for want of sufficient facts, she filed her answer in five paragraphs; the first a general denial, the second, third, and fourth alleging certain unperformed conditions upon which she signed the subscription list, and the fifth denying the execution of the subscription list sued on. There was a verdict and judgment below for appellee in the sum of $328.15.

The errors assigned call in question the action of the trial court in overruling appellant's demurrer to the complaint and in overruling her motion for a new trial.

[1] The fourth, relative to instructions given, need not be considered, because it nowhere appears in the record that the appellant took any exceptions to the instructions given by the trial court in compliance with the statutory requirements. The fifth, relative to the refusal on the part of the trial court to give certain instructions requested by appellant, need not be considered for the same reason

[2], and for the further reason that appellant's brief does not contain a copy of the instructions nor a succient statement thereof, as required by rule 22 of the Supreme and Appellate Courts.¹

[3] The sixth and seventh specifications are the admitting of certain evidence over the objection of appellant, and the eighth the overruling of appellant's motion to strike out certain evidence. These, however, are not presented for our consideration, and are waived by failing to discuss them.

This leaves for consideration the overruling of appellant's demurrer to the complaint, and two of the reasons assigned for a new trial: (1)The verdict is not sustained by sufficient evidence; and (2) the verdict is contrary to the law and the evidence.

[4] Appellant insists that the complaint does not allege any contractual relation between appellant and appellee on the grounds that the subscription paper says nothing about the appointment of an agent. Therefore the complaint, taken in connection with Exhibit A, is insufficient, and that the complaint does not show the appointment of Weinsheimer as agent of appellant, except by recital. The complaint specifically avers, not as a recital, but as an allegation of substantive fact, “that the above-mentioned subscribers, including the defendant, appointed one Louis Weinsheimer, at that time the duly qualified and acting trustee of Knight township, as their agent to contract for the construction and improvement of said highway.” Exhibit B was a contract made by Weinsheimer with appellee providing for the improvement of Slaughter avenue with broken rock, thus carrying out the terms and provisions found in Exhibit A for and on behalf of all the parties interested in the improvement. If the fact of his agency was not apparent from Exhibit A, but instead must be proven by parol, such fact must necessarily be alleged in the complaint to admit of proof upon this branch of the case.

[5] A writing may form but part of an agreement, and, when this fact appears from the instrument itself, the whole agreement, including both the written and parol facts, should be alleged in the pleadings. Kentucky, etc., Co., v. Cleveland, 4 Ind. App. 173, 30 N. E. 802;Freed v. Mills, 120 Ind. 27, 22 N. E. 86. Whether the selection of Weinsheimer as the representative of the contributors to the road fund to act for them in having the road improved could be gathered from the writing itself, or whether that part of the agreement would have to be shown by parol, the complaint alleged his agency, and a contractual relation between appellant and appellee, sufficiently to withstand demurrer.

[6] Appellant insists, also, that, even if Weinsheimer was duly appointed agent, yet the contract which he made with appellee is not in accordance with the allegations of the complaint; that the contract which he made with appellee, and which was made a part of the complaint and marked “Exhibit B,” by its terms is “for the purchase of one thousand yards of broken rock or crushed stone for the improvement of said Slaughter avenue”; while the complaint alleges that “said trustee *** executed a contract with plaintiff for the construction of a rock road in accordance with said agreement.” The agreement here referred to is the subscription paper which is the foundation of the action, and marked “Exhibit A.” This exhibit sets out the...