25 Ind. App. 538 | Ind. Ct. App. | 1900
—Appellants Morse and Morse were partners and building contractors. Appellants Brown and Brown were partners and also building contractors. As such, they entered into a contract with the board of school trustees of the city of Washington, in Daviess county, Indiana, for the erection of a public school building. Appellee and one Thankmar Langner were plastering contractors, under the firm name of Carl Langner & Co., and as such, contracted with appellants to plaster said school building for an agreed sum. The amount fixed by the contract was paid them. Before the beginning of this action, Thankmar Langner assigned all of his interest in the contract to appellee, and the latter bróught this action to recover for extra work and certain expenses incurred in carrying out his contract. The amended complaint is in a single paragraph, to which a demurrer for want of facts was overruled. The issues were joined by an answer and reply; trial by jury; verdict and judgment for appellee.
The errors assigned are that the court erred in overruling the demurrer to the complaint; that the court erred in overruling the motion to strike out parts of the complaint; that the court erred in overruling the motion for a new trial, and in permitting appellee to file a remittitur. These several questions will be disposed of in their order.
The complaint and the exhibits thereto are of great length and we will notice the averments of the former only in so far as may be necessary to determine its sufficiency. It is averred that the contract between appellants and the school board was executed by appellants Morse and Morse, for and on behalf of all the appellants; that the contract between appellants and appellee and his partner was signed by Morse and Morse only, for and on behalf of appellants;
The next question discussed by counsel is the overruling of the motion to strike out parts of the complaint. This question is not presented by the record for our consideration. The motion and -the ruling thereon are not brought into the record by a proper bill of exceptions. The motion to strike out was filed and overruled January 5, 1899, to which ruling the appellants excepted and were given ten days in .whichAo file their “special bill of exceptions on the ruling of the court on said motion to strike out.” No such bill of exceptions was filed within the time given by the court. Appellants’ motion for a new trial was overruled February 2, 1899, and sixty days time was given in which to prepare and file a bill of exceptions. Within this time, appellants did file their general bill of exceptions. This paper is entitled: “Bill of exceptions and statement of the evidence.” In the general bill of exceptions, appellants have embraced the motion to strike out, but the bill fails to show that the court made any ruling thereon, or that any exceptions were reserved. The rule that when time is given in which to file a bill of exceptions it must be filed within the limit of the time given has so often been decided that it stands unchallenged.
The record does not show that appellants filed a special bill of exceptions embracing the motion to strike out, and the ruling thereon, within ten days given in which to file it. The failure so to file it is not cured by attempting to embrace it in the general bill of exceptions, time for which was given, upon the overruling of the motion for a new trial. The time allowed for filing a bill of exceptions upon overruling a motion for a new trial covers only matters relating to the trial, and does not include collateral motions,
A motion to strike out a part of a pleading has no place in the trial of a cause within the meaning of the statute. It has to do with the issues and not with the trial, and hence, under §559 Horner 1897, it is not a reason assignable for a new trial. In the case before us, appellants assigned as one of the reasons for a new trial that the court erred in overruling their motion to strike out parts of the complaint. As such action of the court was not a ground for a new trial, its incorporation 'in the motion presents no question for review. But if the question were properly ]3re-sented, and the court was in error in its ruling, it would not be ground for a reversal, for in this State the courts of final resort do not reverse a judgment for an adverse ruling on a motion to strike out a part of a pleading. Hoffman v. Henderson, 145 Ind. 613.
This brings us to an examination of the questions embraced in the motion for a new trial. There were a great many reasons assigned for a new trial, but as we have concluded that the record shows reversible error, we will notice
We enter upon the discussion of these questions, remembering that the contract under which appellee did the work was in writing, and that by the express provisions of that contract, the plans and specifications and the contract between appellants and the school trustees for the erection of the building,, all of which were in writing, are made parts of appellee’s contract to do the plastering. It follows, therefore, that he was bound by these, for the specifications, the contract between appellants and the school trustees, and his own contract, must be construed together as one. These contracts and the plans and specifications being in writing, and not being ambiguous, indefinite or uncertain, it became a question of law for the court to construe them. It was not, therefore, the province of a witness or the jury to put a construction upon them.
Appellee while testifying in his own behalf was asked these questions: “State whether or not under the specifications and your contract, you were required to plaster the two vestibule arches? State whether or not the specifications and your contract in this case included and required you to tint the ceilings of the-high school building? State whether or not under the specifications and your contract, you were required to plaster the spaces where the blackboards were to go?” Other questions of a like character were asked the witness, and also other witnesses, but they need not be repeated here. All of these questions were answered in the negative, and hence appellee was permitted to construe the contracts and specifications. During the progress of the work, the contracts and specifications provided that as to all matters of dispute as to the correct interpretation and construction of the specifications, the architects were the sole arbiters, bait when this case was tried, that period had passed, and the duty of interpretation and con
Instruction number two, • tendered by appellant and requested to be given to the jury, and which the court refused to give, is as follows: “If the jury should find from the evidence that the plaintiff and the defendants made and entered into the contract which is filed with the complaint marked exhibit C, and you should further find that the provisions of such contract marked exhibit A and the specifications marked exhibit' B were not modified or changed by the school trustees and the said T. J. Morse & Son, then the court instructs you that in order for the plaintiff to recover anything for extra work or extra material, he must show by a preponderance of the evidence that a change in writing was ordered and made by the school trustees, in the plans and specifications, which required extra work or extra materials, and if you should find that said school trustees did not order or make in writing any change in such specifications, requiring extra work or extra materials, there can be no recovery in this action for any claim for extra work or extra materials, and as to any claim for such extra work or extra materials, except on the score of crooked walls, you should find for the defendants.” ■ This instruction, as applied to the pleadings and the facts disclosed by
Instruction number two given by the court on its own motion submitted to the jury a question of law with which they had nothing to do. By this instruction, it was left with the jury to find from the evidence what the contract was between appellants and appellee, and also to determine from the evidence whether or not the contract marked exhibit A and the specifications marked exhibit B were a part of that contract. This was misleading and an erroneous statement of the law1. The court by this instruction left it with the jury to determine for themselves what the contract was between appellant and appellee, and to put their own construction upon it. There was in fact no controversy as to what the contract was. By the contract marked exhibit C, the specifications marked exhibit B and the contract marked exhibit A were made a part of it, and it was the duty of the court so to instruct the jury. The three exhibits
Other questions are discussed by counsel, but as they are not likely to arise in a subsequent trial of the cause, and as the judgment must be reversed for the reasons given, it is unnecessary for us to consider them.
Judgment reversed, and the court below is directed to grant appellants á new trial.