Wiggam v. Rhodes' Estate
| Decision Date | 29 May 1931 |
| Docket Number | 14,138 |
| Parties | WIGGAM v. RHODES' ESTATE |
| Court | Indiana Appellate Court |
From Marion Probate Court (16,622); Mahlon E. Bash, Judge.
Claim against the estate of John M. Rhodes by Julius C. Wiggam. From a judgment for the estate, the claimant appealed.
Affirmed.
William H. Faust, Irene Faust and Louis A. Weiland, for appellant.
Leo M Rappaport and Albrecht R. C. Kipp, for appellee.
On August 2, 1929, appellant filed his claim against the estate of John M. Rhodes, in the office of the clerk of the probate court of Marion County, which claim so asserted was, omitting the formal parts, as follows: "Balance due for milk supplied decedent during the years 1918, 1919, 1920, 1921 1922 and 1923 as per statements rendered decedent--$ 545.18." This claim was submitted to the court for trial, and there was a finding and judgment in favor of the estate and against appellant claimant for costs. Motion for a new trial was filed and overruled, to which action appellant duly excepted, and, from the judgment rendered, this appeal is prosecuted.
The error assigned and relied upon for reversal is the overruling of appellant's motion for a new trial, and appellant's contention is that the evidence introduced at the trial of the cause in support of his claim is undisputed and proves a state of facts that entitles him to recover, and that, therefore, the decision of the court is not sustained by sufficient evidence.
It is true that, where the facts are without dispute and the evidence in the record is all one way, its effect becomes a matter of law, and this court will weigh it, even in favor of the right of an appellant to recover. Field v Campbell (1904), 164 Ind. 389, 72 N.E. 260, 108 Am. St. 301; First Nat. Bank v. Farmers, etc., Bank (1908), 171 Ind. 323, 86 N.E. 417.
This case was tried in the court below on the theory that the decedent was indebted to appellant on an "account stated." No evidence was offered to justify a recovery upon any other theory, and, while the claim filed did not on its face purport to be for an account stated, we will consider the sufficiency of the evidence to justify a recovery by appellant on that theory, it having been adopted by the parties in the trial court and on appeal.
An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the...
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