Tipton Light, Heat & Power Company v. Dean

• Decision Date: 19 April 1905
• Docket Number: 20,555
• Citation: 73 N.E. 1082,164 Ind. 533
• Court: Indiana Supreme Court
• Parties: Tipton Light, Heat & Power Company v. Dean

73 N.E. 1082

164 Ind. 533

Tipton Light, Heat & Power Company v. Dean

No. 20,555

Supreme Court of Indiana

April 19, 1905

From Tipton Circuit Court; J. F. Elliott, Judge.

Action by Zachariah T. Dean against the Tipton Light, Heat &amp Power Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Oglebay & Oglebay, for appellant.

Loring W. Mellett, Eli P. Myers and Dan Waugh, for appellee.

OPINION

Gillett, J.

Appellee was the plaintiff below. His complaint was in three paragraphs. In each paragraph it is alleged that appellant promised to pay appellee $ 100 for the performance of certain work which the latter agreed to do in and about the repair of a gas-well. The paragraphs differ only as to the wells they respectively relate to. Appellee alleged in general terms performance of the conditions on his part. Appellant filed a general denial and a plea of payment. Upon the closing of the issues there was a trial, which resulted in a verdict for appellee for $ 300. Appellant filed a motion for a new trial, assigning as a ground therefor "that the assessment of the amount of recovery is erroneous, it being too large." Appellee filed a remittitur of $ 30, and thereupon the court rendered judgment for $ 270.

Appellant seeks a reversal in this court on the ground that the evidence does not show performance upon the part of appellee under the first and third paragraphs of his complaint. It is insisted by appellee's counsel that there has not been such a compliance with the fifth subdivision of rule twenty-two of this court as to present these questions. This is not a case where there has been no attempt upon the part of appellant to comply with said requirement. Under a heading in its brief denominated "The evidence," appellant fully admits the points on which there is evidence against it, but as to the third paragraph it is stated that "there is no evidence of any kind whatever tending to show that the appellee ever performed the conditions on his part as to the Riley well." In his answer brief appellee sets out the substance of the evidence given by each witness which he claims supplies this omission, referring in each instance to the page and line of the transcript. The subdivision of the rule above referred to, after providing the character of the statement of the evidence which appellant shall prepare where the sufficiency of the evidence to sustain the verdict or finding is sought to be drawn in question, contains the following: ...