159 Ind. 355 | Ind. | 1902
— Tbis appeal comes on an order of transfer from the docket of tbe Appellate to tbis Court as an undistributed case. Tbe action was instituted below by appellee to recover of appellant tbe price of a burial casket and box, and for services rendered as an undertaker at tbe burial of one Mrs. C. F. Tritcbler. On a trial before a jury appellee was awarded a verdict for $75, and over appellant’s motion for a new trial judgment was rendered for tbat amount.
The pleading discloses that appellant is indebted to the appellee for goods furnished and services rendered at the special instance and request of the former. Under the alleged facts there was at least an implied promise upon the part of appellant to pay the reasonable value of the goods furnished and services rendered. If he ordered or requested the goods to be furnished and the services to be rendered as averred, it is immaterial for what legitimate purpose, or for whose use, they were intended. Rend v. Boord, 75 Ind. 307.
It is certainly true in a legal sense that where goods are furnished by one party upon the order, or at the special instance and request, of another, that the person who gives the order or makes the request that they be furnished for the use of some third party will be considered as the purchaser, and not the party to whom the goods are furnished in pursuance of such order or request. The debt incurred thereby will be.that of the person making the order or request that the goods
The following is a summary of the facts, which are clearly and fully established by evidence in the record: The wife of C. E. Tritchler, a resident of Eort Wayne, Indiana, died at said city on June 2, 1896. At the time of her death her husband was in the employ of appellant, the latter being engaged in the plumbing business at that city. It is shown that Mr. Tritchler continued in appellant’s employ for some two years after the death of his wife. On the day following the death of Mrs. Tritchler, her said husband, together with appellant, went to appellee’s place of business in the city of Eort Wayne, he being engaged in conducting the business of an undertaker. The purpose of their going to see appellee was to have him furnish a casket and box for the burial of the deceased wife, and to procure him to take charge of the funeral, and ship the corpse to Defiance, Ohio, at which place the remains were to be buried. Appellee and appellant were acquainted with each other, but appellee had no acquaintance with Mr. Tritchler, the husband. The latter, it seems, selected a burial casket at the price fixed by appellee. After everything had been selected, appellant ordered or directed appellee to charge the bill to him, as Tritchler was in his employ, to which appellee consented; and thereafter, in pursuance of appellant’s order, he furnished and delivered the casket and box for the burial of Mrs. Tritchler, and performed the usual and necessary services at her funeral as an undertaker; all of which it was shown were worth at least $75. It appears as a part of the same transaction or arrangement appellee was directed to furnish or have on
It was shown upon the trial that appellant was indebted to Tritchler, the husband, during the whole period he remained in his employ, which was for quite a period before the death of his wife, and, as previously stated, for about two years after her death. On a settlement between Tritchler and appellant, at some time before the commencement of this suit, the latter deducted out of the amount due from him to the former the full sum due to appellee for the casket, box, and the services in question, and also $2 for the carriage furnished at the funeral. This carriage, as it appears, was ordered by appellee from a firm known as Powers & Barnett, who were engaged in the livery or transfer business in the city of Port Wayne. Appellee usually collected the bill for carriages furnished by this firm at funerals as a part of the undertaker’s charges, but he would do so, however, under an arrangement which he had to
The amount for the carriage, it appears, forms no part of the claim upon which appellee recovered in this action. There is evidence to show that appellee charged the account for the casket and services rendered alone to appellant, as directed.by the latter, and at no time did he present the bill to Trichler, or in any manner looked to him for the payment thereof. Appellant complains of several rulings of the court in admitting and in refusing to exclude evidence, and in giving, and in refusing to give, certain instructions. Upon an examination in respect to these questions we conclude that the court in its charge to the jury fully presented the theory of both parties in this action, and the instructions, when considered as a whole, may be said to have fully advised the jury in regard to the law applicable to the case under the issues and the evidence, and are as favorable to appellant as he has any right to demand. The rulings pi the court of which appellant complains in relation to the admission and exclusion of evidence are not open to the objection urged, and if any of them could be said to be erroneous, they would not, for the reasons hereinafter stated, justify us in disturbing the judgment of the lower court.
The alleged error upon which counsel for appellant state that they “particularly rely for a reversal” is based on facts as the same are exhibited by a special bill of exceptions. This bill appears to have been filed on December 24, 1900,
It will be observed that the exact date when the bill was presented to or signed by the trial judge is not shown, and counsel for appellee contend that by reason .of this fact the' bill is not available for the purpose intended. The conflicting statements in the bill certainly leave the question as to whether appellant was present in court in person or by counsel at the time the court addressed its remarks to the jury, and at the time the verdict was returned and received, somewhat confused or in doubt. It is not the duty of this court on appeal to settle conflicting statements in bills of exceptions. If the defendant was not present in person or by counsel at the time or times as stated in the bill, then it certainly can not be true that he at the time excepted to the action and conduct of the court as therein declared. If the exception was taken by the defendant at the time as stated, then it may certainly be presumed that the same was reserved by him in person or by some one authorized to appear in court at the time in his place and stead.
Passing over, as we do, however, the several infirmities imputed to or urged by counsel for appellee against the bill of exceptions, and giving the action of the court in question consideration, we are constrained, under the circumstances, to say that the action or conduct of the trial court in addressing the jury, and in receiving the verdict, as shown, in the absence of the parties and their counsel, and without their consent, and without any notice to them or their attorneys, and without any effort or attempt being made to apprise them of what the court was proposing to do, — no excuse whatever being shown in the bill of exceptions for the court’s taking such actions or steps in the absence of the parties and their counsel, — is justly open to criticism and complaint. Section 550 Burns 1901 provides: “After
While, perhaps, the question under the facts herein does not bring the ease within the strict or express letter of the above section, nevertheless it certainly falls within the spirit thereof. A .trial court is not justified in threatening a jury, and thereby attempting to coerce them into an agreement ; still the court may impress upon them the fact that by reaching an agreement in the particular case, if they consistently can, under the law and the evidence, they will subserve the interests of both the public and the respective litigants. Certainly the action of the court in receiving the verdict under the particular circumstances was, to say the least, an irregularity, not in harmony with the due administration of justice. The hour at which it was received was an unusual one, — being in the night-time; but if the court deemed it proper to receive the verdict during the night, then some arrangements ought to have been made with the parties or their counsel by which they might have been apprised of the agreement of the jury, and thereby have availed themselves of their right to be present in court at the time.. By §553 Pur ns 1901, each party in an action is given the right on the return of a verdict to poll the jury. This statute evidently contemplates that the parties will be present in court in person or by counsel upon the return of a verdict, and avail themselves of this right. Not only may they exercise such a right on the return of a verdict, but it is their privilege to exercise any others to which they
While we are of the opinion, as previously said, that the action of the court in question is justly subject to criticism, and if the judgment, in consideration of the evidence before us, was not clearly right, such condiict might afford, grounds for a reversal; but in this case the court’s action in the matter will not warrant us in disturbing the judgment for the plain reason that there is competent evidence in the record from which it is clearly and satisfactorily shown that by the judgment below a correct or right result has been reached, and justice thereby has been fully subserved. In fact we are unable to discover how the jury could have decided otherwise than they did, unless they had arbitrarily rejected the evidence given in behalf of appellee, and accepted alone that which appellant gave as a witness in his own favor.
Where, as in this appeal, it clearly and satisfactorily appears that the merits of the case have been fairly tried and determined, and a right result reached, this court, under the rule recognized by §.670 Burns 1901, must disregard intermediate errors occurring at the trial, and sustain the judgment. This rule has been repeatedly observed and enforced by the decisions of this court. See cases collected under §670, supra.
Eor the reasons stated, the judgment should be, and therefore is, affirmed,