66 Ind. 474 | Ind. | 1879
This was a suit by the appellees, against the appellants, upon an open account, for personal property alleged to have been sold and delivered by the former to the latter, at their special instance and request. With their
To the appellees’ complaint and their affidavit in attachment, the appellants answered in four paragraphs, of which the first was a general denial of the complaint; the second was a denial of the grounds for the attachment stated in said affidavit; and each of the third and fourth paragraphs set up affirmative matters, by way of recoupment or counter-claim.
The appellees’ demurrer to the fourth paragraph of the answer, for the alleged want of sufficient facts therein, was sustained by the court, and to this decision the appellants excepted, and to the third paragraph of the answer the appellees replied by a general denial.
The issues joined were tried by a jury, and a verdict was returned for the appellees, assessing their damages in the full amount of the account in suit. The appellants’ motion for a new trial having been overruled, and their exception saved to this ruling, judgment was rendered by the court, on the verdict,from which judgment this appeal is now prosecuted.
The appellants have here assigned, as errors, the following decisions of the court below:
1. In sustaining the appellees’ demurrer to the fourth paragraph of their answer;
3. In overruling their motion for a new trial.
1. In the fourth paragraph of their answer, the appellants alleged, in substance, that they were fruit merchants, doing business under the firm name of A. P. Lee & Bro.; that the appellees, by their agent, on the 21st day of April, 1875, executed and delivered a written memorandum of goods they agreed to deliver to the appellants, oh the fastest freight line leaving the City of New York, which was the' “ Empire Line,” a copy of which memorandum was filed with and made a part of said paragraph; that the appellees’ agent made a mistake in writing said agreement, which was written on a bill-head of the appellants, and left out the word “ sold,” before their firm name at the top of said bill-head ; that it was intended, understood and agreed, that said contract should be so executed, and the appellants said that they did not discover the mistake till some time after the appellees’ agent had left the city of Terre Haute, where said contract was made; that, by the terms of said agreement, the appellees were to deliver to the appellants, in the city of Terre Haute, the goods therein named, on sixty days’ acceptance, the same to be ordered at once and shipped by the “ Empire Line,” a corporation at that time shipping goods from the city of New York to the city of Terre Haute; that the appellants ordered the said goods, which the appellees refused to deliver to the appellants ; that if the appellees had shipped the said goods as ordered, at the time they were so ordered, they would have arrived at the city of Terre Haute, on or about the 1st of May, 1875, at which time Prolema lemons, were worth $6 per box. and Messina lemons were
The following is the form of the memorandum in which the alleged mistake occurred, as the same appears in the record:
“ Terre Iiaute, Ind.,-187 ,-A. P. Lee & Bro.” (Under this caption, there is a given list of the numbers of boxes of the different kinds of lemons and oranges, the price per box of each kind and the aggregate price of each kind, and closing as follows:)
“ Freight. Ship Emp. Line, 60 days’ acceptance.
(Signed,) “ Hills Bros.,
“April 21st, 1875. Per E. F. Lock.”
It is very clear, we think, that the alleged mistake in this memorandum can not be corrected, and the writing can not be reformed, in the manner asked for by the appellants in this action. In the fourth paragraph of their answer, the appellants allege that they had purchased of the appellees
In the case of Ridgway v. Ingram, 50 Ind. 145, the requisites of the “note or memorandum in writing,” referred to in the statute of frauds, were considered by this court; and in that case it was said by Worden, J., ii^ delivering the opinion of the court, that “A memorandum, in order to be sufficient within the statute, must state the contract with such reasonable certainty, that its terms may be understood from the writing itself, without recourse to parol proof.” .In the case cited, the following statement of the law, upon the point under consideration, is quoted with approval from 2 Kent Com. 511 : “Unless the essential terms of the sale can be ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it can not he supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.”
In 3 Parsons on Contracts, p. 13, it is said: “ As to the question -what the written agreement must contain, the general answer is, all that belongs essentially to the agreement, and more than this is not needed; nor can parol evidence be received to supply anything which is wanting in the writing, to make it the written agreement on which the parties rely.” Norris v. Blair, 39 Ind. 90; Baldwin v. Kerlin, 46 Ind. 426.
In the case at bar, it is claimed by the appellants, that the memorandum, on which they rely in the fourth para
The court committed no error, in our opinion, in sustaining the appellees’ demurrer to the fourth paragraph of the appellants’ answer.
2. The second error, assigned by the appellants on the record of this cause, is the decision of the court below in overruling their motion for an order for the inspection and copies of all letters, telegrams, postal-cards and other orders, relating to this action, written or sent by them to the appellees, and then in the possession of the appellees’ attorneys. The point is made by the appellees’ counsel in argument, and we think it is well' made, that this alleged error is not shown in or by the record of this cause, on file in this court. The entries in this cause on the order book of the circuit court, as the same are copied into the record, fail to show that the appellants made any such motion for the inspection and copies of all letters, etc., as stated in this assignment of error, or that any such motion was decided by the court, or that they excepted to any such decision. The only evidence of any such motion or decision or exception thereto, to be found in the record, is contained in what purports to have been a bill of exceptions in the case, and, as such, copied into ’the record. This apparent bill of exceptions was filed in the court below, on the 28th day of October, 1876, and it appeared to have been signed by the Honorable Chambers Y. Patter
In another view of this question, we think that this pretended bill of exceptions did not become a part of the record of this cause. As we have seen, the decision of the court in overruling the said motion of the appellants was made at the April term, 1876, of the court, on the 10th day of June, 1876. The record shows, that at the said April term, 1876, of the court, on the 13th day of June, 1876, on the appellants’ application, the venue of this cause was changed from Judge Chambers Y. Patterson, the reg
Eor the reasons given, the second alleged error, in our opinion, is not apparent in the record.
3. Among the causes for a new trial, assigned by the appellants in their motion therefor, were certain alleged errors of law occurring at the trial and excepted to, in overruling their motions to strike out certain parts of cerr tain depositions. It appears from a bill of exceptions in the record, that, on the trial of this cause, the appellees read in evidence to the jury the depositions of themselves, John Hills and William Hills ; and that, after they had rested their case, the appellants called as a witness the apr pellant Chauncey B. Lee, who testified “ that he resided in the city of Terre Haute, and plaintiffs resided in the city of New York; that the goods mentioned in the complaint were ordered by him, and that all the orders were in writing, and were sent by him through the mails to the plaintiffs.” Upon this evidence, the appellants moved the court to strike out the following part of question 4, and the answer thereto, in each of the said depositions : “ How and when were the goods delivered ? ” and the answer thereto as follows: “ The articles were
The reasons assigned for this motion were, that it then appeared from the evidence of said Chauncey B. Lee, “ that the orders for the goods in controversy were in writing, and were the best and only proper evidence of the facts testified to by the plaintiffs.” It seems to us that the court committed no error in overruling this motion of the appellants. The manner and the time of the delivery of the goods were facts which had an existence, if they existed at all, entirely independent of any written order, and as such they might be proved, without the production of the order, by any competent witness cognizant of such' facts. The question objected to certainly did not, in terms, call for the contents of any written instrument, and was unobjectionable both in form and substance. The answers stated facts, which also existed, if at all, independently of any writing, with the exception of the expression, “as directed by the defendants.” If the appellants had limited their motion to the striking out of the expression last quoted, from the answers of the deponents, the court would no doubt, and very properly, have sustained such limited motion. But the motion was an entirety, and some of the matter it was directed to was free from objection and pertinent to the issues in this cause, and, therefore, we think that the motion was correctly overruled.
Upon the same evidence, and for the same reasons, the appellants also moved the court to strike out the following part of the answers of the deponents to the 5th question, to wit: “ They ” (the goods) “ were of the kind and quality ordered.” It is very certain, we think, that the written order, if produced, would not have proved the fact as to “ the kind and quality” of the goods actually delivered. This fact was outside and independent of the
These are all the questions discussed by the appellants’ counsel, arising under the alleged error of the court 'in overruling the motion for a new trial. In our opinion the motion was correctly overruled.
The judgment is affirmed, at the appellants’ costs.