Wallace At Al. v. Shoemaker
| Decision Date | 01 April 1924 |
| Docket Number | No. 24067.,24067. |
| Citation | 194 Ind. 419,143 N.E. 285 |
| Parties | WALLACE at al. v. SHOEMAKER et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Tippecanoe County; Henry H. Vinton, Judge.
Action by Clifton W. Shoemaker and another against Charles W. Wallace and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Gaylord & Sills, of La Fayette, for appellants.
Gougar & Andrew and Stuart, Simms & Stuart, all of La Fayette, for appellees.
Appellees filed a complaint against appellants in three paragraphs, the second of which asked damages for an alleged breach of a warranty in a contract for the sale of a Poland China sow named “Queen Miss,” while the third alleged that appellees were induced by fraud to enter into the contract of sale, and had given notice of a rescission and tendered back the animal purchased, and asked to recover back the purchase money.
The first paragraph was dismissed. Appellants demurred to the second paragraph for want of facts sufficient to constitute a cause of action, specifying that it did not aver that the purchase price at which the sow was sold to appellees had been paid or agreed to be paid, or show them to have been damaged by payment thereof. This demurrer was overruled, and appellants excepted. Issues were joined by answers of denial to each paragraph of the complaint, and on proper request the court made a special finding of facts on which it stated a first conclusion of law to the effect that under the facts found, as alleged in the second paragraph of complaint, appellees were entitled to recover $7,025, and a second conclusion that they were not entitled to recover anything under the third paragraph. Appellants excepted to the first conclusion of law, and filed a motion for a new trial, for the alleged reasons that the finding and decision was not sustained by sufficient evidence and was contrary to law.
[1] No attempt whatever has been made to comply with the fifth clause of rule 22, which provides that-
“If the insufficiency of the evidence to sustain the verdict or finding in fact or law is assigned the statement (in appellant's brief) shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely.”
A few questions and answers relating to the single point whether or not the sale, warranty, and damages were joint or several, copied a few lines in a place from 8 pages out of 523 pages of evidence in the bill of exceptions, are recited in appellants' brief under the heading of “Propositions and Authorities.” But all that has been quoted from the testimony of appellees, even there, is taken from their cross-examination, while the brief for appellees refers us to where each appellee, in his examination in chief, testified that the two of them purchased the sow by a bid that one of them made on behalf of both, and their brief asserts that there was much more evidence on that point not set out in either brief. Such a failure to recite any of the evidence except a little which tends to support their own contention as to the facts of the case amounts to a waiver of the specifications in appellant's motion for a new trial.
[2] The first paragraph of the complaint alleged that the defendants (appellants) conducted a sale of Poland China hogs, at which they put into the hands of bidders a catalogue, setting out a guaranty that “all animals [were] guaranteed breeders,” and that the “terms” of sale were “cash or equivalent”; that the catalogue named and pictured the sow called “Queen Miss” as being included in the sale, with the statement that she was bred to a designated boar, and that “she has large litters and raises them”; that the statements in said catalogue were made by defendants as a part of the sale and constituted an express warranty of the truth of the facts so stated, and that the auctioneer in selling that sow orally warranted her to be with pig and a breeder; that at said sale plaintiffs (appellees) “purchased said sow of said defendants as being with pig and for a brood sow, at the price of $7,100; that in...
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