Willis v. Knauth

Citation137 N.E. 557,79 Ind.App. 114
Decision Date12 December 1922
Docket NumberNo. 11340.,11340.
PartiesWILLIS et al. v. KNAUTH.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Sullivan County; Wm. H. Bridewell, Judge.

Action by Victor Knauth against T. Frank Willis and another. From judgment for plaintiff, defendants appeal. Affirmed.Kessinger & Hill and James M. House, all of Vincennes, for appellants.

Wm. A. Cullop, of Vincennes, and Lindley & Bedwell, of Sullivan, for appellee.

BATMAN, J.

On May 29, 1916, appellant T. Frank Willis and one T. J. Oliphant entered into a written contract whereby the former was to construct for the latter a six-story, fireproof office building, according to certain plans, specifications and drawings. On June 5, 1916, the said Willis, together with his coappellants Klemeyer and Davis, executed to said Oliphant a bond in the sum of $20,000, which by its terms should be void if said Willis should perform his part of said contract, pay all indebtedness incurred by him in so doing, complete the building free of mechanics' liens, etc. Said bond also contained the following provision:

“This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.”

This action was instituted by appellee on said bond, to recover a balance which he claimed to be due him for furnishing and installing the plumbing and heating equipment for said building, as provided in said contract. After issues were joined, the cause was submitted to the court for trial, resulting in a judgment in favor of appellee. Appellants filed a motion for a new trial, which was overruled, and this action of the court constitutes the only error assigned on appeal.

Appellee has raised a number of questions with reference to appellants' brief, some of which appear to have merit, as disclosed by the opinions in the following cases, but which we have not considered, in view of the conclusion reached with reference to the questions which appellants have attempted to present: Board of Com'rs of Lake County v. Shedd (1920) 72 Ind. App. 160, 125 N. E. 656;Clemens v. Stoner (1920) 73 Ind. App. 370, 126 N. E. 487;Rose v. City of Jeffersonville (1916) 185 Ind. 577, 114 N. E. 85; Thomas v. Hennes (1922; Ind. App.) 135 N. E. 392.

[1][2] Appellants complain of the action of the court in admitting certain evidence, and state in their brief that they objected to its introduction on the ground “that it is not competent or relevant for any purpose.” It is well settled that the only objections to the introduction of evidence which this court will consider are those made in the court below at the time of the offer, and that, to present a question with reference thereto, the complaining party must set out in his brief what such objections were. Irvine v. Baxter Stove Co. (1919) 70 Ind. App. 105, 123 N. E. 185;American, etc., Co. v. Indianapolis, etc., Co. (1912) 178 Ind. 133, 98 N. E. 709. Since the only objection to the evidence in question, shown by appellants' brief in their statement of the record, was, as quoted above, we will assume that it was the only one made, and hold that no question is presented for our determination. Supreme Tribe, etc., v. Kraft (1915) 183 Ind. 427, 109 N. E. 403;Malott v. Central Trust Co. (1906) 168 Ind. 428, 79 N. E. 369, 11 Ann. Cas. 879.

[3][4] The only remaining question, which appellants have attempted to present in their propositions or points, relates to the sufficiency of the evidence to sustain the decision on which the judgment is based. The contention in this regard is that the contract between said Willis and Oliphant for the construction of the building in question forms a part of the basis of appellee's action; that, this being true, it was essential to his right of recovery that such contract be introduced in evidence; that the original thereof was not so introduced, and secondary evidence was given of only a portion of the same....

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7 cases
  • Thex v. Shreve
    • United States
    • United States State Supreme Court of Wyoming
    • May 8, 1928
    ...... renewals are not grounds for reversal, 2 R. C. L. 91;. Urquhart v. Cass, 110 P. 1001; Willis v. Knanth, 137 N.E. 557; Sterler v. Bush, 195 N.W. 360; Wigmore, Vol. 3, § 1630; the objection of no. foundation goes no further than ......
  • Strathmann v. State
    • United States
    • Court of Appeals of Indiana
    • May 10, 1929
    ...R. Co. v. Walker, 113 Ind. 196, 15 N. E. 234, 3 Am. St. Rep. 638;Gray v. Blankenbaker, 68 Ind. App. 559, 121 N. E. 84;Willis v. Knauth, 79 Ind. App. 114, 137 N. E. 557. The appellant's brief does not show any grounds upon which a single objection was made to the introduction of evidence off......
  • Crowell v. Jeffries
    • United States
    • Court of Appeals of Indiana
    • December 13, 1922
  • Walter v. Pence
    • United States
    • Court of Appeals of Indiana
    • January 25, 1938
    ......423;. Lautman v. Pepin, 1901, 26 Ind.App. 427, 59 N.E. 1073; Citizens' Gas, etc., Co. v. Whipple, 1904,. 32 Ind.App. 203, 69 N.E. 557; Willis v. Knauth,. 1922, 79 Ind.App. 114, 137 N.E. 557. . .          Appellant. has cited the case of City of Bedford v. Woody,. 1899, 23 ......
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