76 Ind. 476 | Ind. | 1881
The appellee sued the appellant in a complaint of two paragraphs, wherein he alleged, in substance, that the appellant was indebted to him in the sum of one hundred dollars for one horse sold and delivered by him to the appellant, with the express agreement that the appellant would pay the appellee the cash for said horse, to enable him to pay off and remove a certain chattel mortgage then held by another party on one wagon and two mules, belonging to appellee, which the appellant agreed to pay ; but, instead of paying the money as he agreed to do, the appellant .falsely and fraudulently pretended to have purchased certain notes on appellee, which he offered to pay in lieu of the money which he had agreed to pay; to appellee’s damage, in the sum of $100. Wherefore the appellee demanded judgment for $125, and for other proper relief.
In the second paragraph of his complaint, the appellee «aid, that on the 23d day of October, 1878, he entered into a contract with appellant to sell him one horse at the price •of $95 ; that, by the terms of said contract, appellant agreed to pay appellee said $95 to enable him to pay a certain mortgage, held by one Peter Scott, on one wagon and tw*o mules belonging to appellee; that, in pursuance of said .agreement, appellee delivered to appellant said horse, and
The suit was commenced before a justice of the peace of Hamilton county, and, on a trial-there had by a jury, a verdict was returned, and a judgment was thereon rendered, in favor of appellee and against the appellant, in the sum of seventy-five dollars and the costs of suit. On appeal to the court below, the cause was again tried by a jury, and a verdict was returned for the appellee, assessing his damages in the sum of one hundred dollar’s; and over the appellant’s motion for a new trial, and his exception saved, the court rendered- judgment on the verdict.
In this court the appellant has assigned, as errors, the following decisions of the circuit court:
1. In overruling his motion for a new trial; and,
2. In overruling his motion to require the jury to find what amount, if any, was due him on his answer of set-off.
A number of causes for a new trial were assigned by the appellant, in his motion therefor, addressed to the circuit court. Without setting out these causes at length, we will consider and decide such questions as the appellant’s learned counsel have presented and discussed, in their brief of this action. The first point made by counsel is, that the verdict of the jury was not sustained by sufficient evidence. In
The appellee’s evidence, however, fully sustained every material averment of his complaint, and the verdict of the jury was supported by sufficient evidence.
It is claimed by the appellant’s counsel that the damages assessed were excessive, and this was assigned as a cause for a new trial in the motion therefor. .This point is well taken. The evidence showed that the horse in controversy was fairly worth the sum of $100, and that, at the time he agreed to buy the horse, the appellant paid the appellee thereon the sum of $20, which money the latter retained and had never returned. It follows that the damages assessed by the jury were excessive, in the sum of $20.
If, therefore, the appellee will, within sixty days from this date, file with the clerk of this court his remittitur of $20 of the verdict and judgment, as of the date of -the judgment below, the judgment will be affirmed; otherwise it will be reversed, and, in either event, at the appellee’s costs in this court.