Storer v. Markley

• Decision Date: 20 April 1905
• Docket Number: No. 20,532.,20,532.
• Parties: STORER v. MARKLEY.
• Court: Indiana Supreme Court

164 Ind. 535

73 N.E. 1081

STORER

v.MARKLEY.

No. 20,532.

Supreme Court of Indiana.

April 20, 1905.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Action by Phillip M. Markley against John H. Storer. Judgment for plaintiff, and defendant appeals. This cause was transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.

Walter Gray and C. A. Taughinbaugh, for appellant. W. W. Mann and Lincoln Lesh, for appellee.

MONTGOMERY, J.

This action was brought by appellee upon a written contract for the recovery of commission on the sale of real estate. Appellant's demurrer to the complaint was overruled, and the issues were closed by an answer in general denial. The cause was submitted for trial to a jury, and a verdict returned for appellee. Appellant's motion for a new trial on the grounds that the verdict was not sustained by sufficient evidence and was contrary to law was overruled, and judgment entered upon the verdict.

The assignment of errors charges that the court erred in overruling appellant's demurrer to the complaint and in overruling his motion for a new trial.

The first of these alleged errors has been waived by appellant's failure in his brief to point out any defect in the complaint, and to cite any authority or advance any argument in support of this assignment. Williams v. Citizens' Enterprise Co., 153 Ind. 496, 55 N. E. 425; Ewbank's Practice, § 188. Appellant's brief does not fully meet the requirements of rule 22 of this court, but the evidence is substantially given; and, as the only question for decision depends upon the sufficiency of the evidence to sustain the verdict, the criticism of counsel will be disregarded.

Appellant's counsel insist that the verdict of the jury was wrong, for the reason, as they claim, that the contract sued upon had been rescinded. This contention is not tenable, because rescission of a contract is an affirmative defense, and, when relied upon, must be specially pleaded. Mabin v. Webster, 129 Ind. 430, 28 N. E. 863, 28 Am. St. Rep. 199;Jordan v. Indianapolis Water Co., 159 Ind. 337, 64 N. E. 680; Amer. & Eng. Ency. Pl. & Prac. p. 849.

The alleged errors relating to the admission of certain evidence, discussed in appellant's brief, were not embraced in the motion for a new trial, and for that reason are not presented for review by this court. Martin v. Motsinger, 130 Ind. 555, 30 N. E. 523;Herrick v. Flinn, 146 Ind. 258, 45 N. E. 187.

The execution of the contract sued upon is conceded, and it is shown by the evidence that, in pursuance thereof, appellee advertised the property for...