54 Ind. 209 | Ind. | 1876
Appellee Was tbe plaintiff, and appellant was tbe defendant, in the court below.
In his complaint and bill of particulars, the appellee alleged, in substance, that appellant was indebted to him in the sum of one thousand dollars, for work and labor done and performed by appellee for appellant, at his instance and request, from the year 1865 to the year 1872, both- inclusive, which sum was due and unpaid, and for which appellee demanded judgment.
Appellant answered the complaint in five paragraphs, as follows:
1. A genera] denial.
2. Payment in full, before commencement of action.
3. Cause of action did not accrue within six years.
4. That about the 15th day of January, 1857, appellee was a child only six years of age and had no father living, and his mother was not able nor was she a fit person to take care of him, nor had he any guardian, nor had he any sufficient means of support and education; that he was then a charge upon the county as a poor person, and was then in the care and custody and under the control
5. That, before the commencement of this action, appellant delivered to appellee one horse, saddle ,bridle, household goods and kitchen furniture, in full satisfaction for said labor, which the appellee received and accepted in full satisfaction for the work and labor specified in his complaint.
Appellee demurred to the fourth paragraph of appellant’s answer, upon the ground that it did not state facts sufficient to constitute a defence to the action, which demurrer was sustained, and appellant excepted. And appellee replied to the second and third paragraphs of the answer, in denial of the matters alleged therein. It does not appear from the record that any action was had in the court below on the fifth paragraph of the answer, but we will presume, the contrary not appearing, that an issue was joined on this fifth paragraph, by a reply in denial.
And the action being at issue was tried by the court below, without a jury, and there was a finding for appellee, against the appellant, in the sum of two hundred and seventy-five dollars and twenty-five cents. And appellant moved the <3ourt below in writing for a new trial, which motion was overruled, and to this decision appellant excepted, and judgment was rendered upon the finding.
In this court, appellant has assigned two alleged errors, as follows:
First. The sustaining of appellee’s demurrer to the fourth paragraph of appellant’s answer.
Second. The overruling of appellant’s motion for a new trial. ■
It will be observed, that, in the fourth paragraph of his answer, appellant relied upon the fact that the overseers of the poor of Carr township, in Jackson county, Indiana, had bound the appellee as an apprentice to the appellant
The second alleged error was the overruling of appellant’s motion for a new trial. Several causes ’for such new trial were stated in the motion, but they all may be summed up in these: that the finding of the court below was not sustained by sufficient evidence, and was contrary to law, and that the damages were excessive. We have carefully read all the evidence in the record. Each of the parties testified in his own behalf, on the trial. There was no dispute between them as to the fact that appellee had pei’formed the work and labor mentioned in his complaint, for the appellant. There was some conflict in the evidence, as to the value of the work and labor done by the appellee; but the court below saw the witnesses upon the stand and heard them testify, and it was the province of that court to determine the weight that should be given to the testimony of the different witnesses, and reconcile the apparent conflict between them. We can not see, from simply reading the evidence, that the finding of the court below was for too large an amount; and certainly we can not disturb the finding on that ground.
The judgment of the court below is affirmed, at the costs of the appellant.