Wachter v. Dewes

• Decision Date: 02 December 1940
• Docket Number: 16437.
• Citation: 29 N.E.2d 1001,108 Ind.App. 469
• Parties: WACHTER v. DEWES.
• Court: Indiana Appellate Court

29 N.E.2d 1001

108 Ind.App. 469

WACHTER v. DEWES.

No. 16437.

Appellate Court of Indiana, in Banc.

December 2, 1940

Arthur E. Letsinger, of Crown Point, for appellant.

Harold S. Barr and Ray C. Hedman, both of Crown Point, for appellee.

LAYMON Chief Judge.

Appellee instituted this action to recover for labor and materials alleged to have been furnished by him in the construction of a bridge over a ditch situated on appellant's farm.

The complaint was in two paragraphs, each paragraph alleging that appellee furnished labor and certain materials at the appellant's special instance and request, all of which is shown by bill of particulars filed with the complaint. Appellant answered the complaint by a general denial and a second paragraph alleging that appellee agreed to construct the bridge and furnish all labor and material at an agreed price of $375, and that the contract had been fully performed and the contract price paid in full before the commencement of this action. The issues were closed by a general denial filed to the second paragraph of answer. The cause was tried by the court without a jury, resulting in a finding and judgment that appellee recover of and from appellant the sum of $275 and costs. In due time appellant unsuccessfully moved for a new trial upon the grounds that the decision is not sustained by sufficient evidence and is contrary to law and that "the court erred in excluding all evidence offered by the defendant showing plaintiff furnished all the equipment necessary in the construction of said cement bridge and that he made no charge for the use of the same during said construction and further that it was the custom of contractors to make charges for the use of the equipment furnished upon construction when the same was contracted for by time and material; that said evidence, as denied, would establish said contract was for a fixed amount as alleged by the defendant, rather than on a time and material basis as found by the court."

This last specification in the motion for a new trial is too indefinite and uncertain to present any question for review. Kimmick v. Linn, Ind.Sup., 1940, 29 N.E.2d 207.

A brief summary of the evidence discloses: That appellee had been engaged in the contracting business for 16 years; that prior to December of 1936, he had numerous conversations with appellant relative to the construction of a bridge over a ditch upon appellant's farm; and that these conversations culminated in an agreement that appellee was to construct the bridge. Appellee began the construction on December 16, 1936 and completed the bridge on January 7, 1937. He testified that during one of the discussions concerning the construction of the bridge the following conversation took place:

Appellant "If you will take the job by the day, will you treat me the same as you would treat your neighbor or your brother?"

Appellee "I would, I would take it by the day or the hour, and I would treat you the same as I would treat my nearest neighbor."

Appellant: "That would be fine. I would like to have you do the job then."

In the course of the construction of the bridge, appellee and...