67 Ind. App. 630 | Ind. Ct. App. | 1918
This is an action upon a contractor’s bond to recover for material furnished by appellee in the construction of a public bridge. The complaint is in one paragraph and alleges the execution of a contract and bond; that by the terms of the contract it was agreed that appellant Guthrie would do and complete the work of constructing certain bridges, including the ‘‘Sycamore Bridge,” and furnish all
Issues were formed on this complaint by answer in general denial and a further plea of payment by the appellant company. A trial by the court resulted in a general finding and judgment for appellee. A motion for a new trial upon the grounds that the amount of recovery is erroneous, being too large, that the decision of the court is not sustained by sufficient evidence and is contrary to law, and the exclusion of certain evidence, was overruled, and such ruling is assigned as error and relied on for reversal.
The contract and bond were read in evidence. Other evidence favorable to appellee shows that Mr. Guthrie went to appellee and informed it that he wanted to purchase material for the construction of a bridge across Sycamore creek and contracted a certain amount of cement and lime for such purpose. He also asked that the items which were to go into the
As tending to support the plea of payment there is evidence tending to show that certain payments and credits were made on the material account for this bridge, leaving the balance as above. It also shows that appellant Guthrie had an old account with appellee of $132.53; that on September 22, 1913, after the bridge had been completed, Guthrie made a payment of $200 to appellee. Out of this amount appellee credited appellant with $132.53 on his old account, and applied the balance to the bridge account. It further appears that at the time this payment was made no directions were given as to where it should be applied. It is also shown that the $200 paid was borrowed money, and did not come out of the proceeds of the bridge contract.
Appellants’ contentions may be summarized as follows : (1) There is no evidence to show that the material involved was used in the construction of the bridge; (2) certain material, e. g., wire, nails, lumber, etc., were not necessary to construct a concrete bridge of which the court will take judicial notice; (3) that appellee had no right to take the payment of September 22,1913, and apply a part of it in satisfaction of the old account.
The court did not err in overruling the motion for a new trial. The cause seems to have been fairly tried and a correct result reached. Judgment affirmed.
Note. — Reported in 119 N. E. 518. See under (3) 30 Cyc 1243; (4) 17 Cyc 153.