28 Ind. App. 298 | Ind. Ct. App. | 1902
J. — Suit by appellees for damages for breach of a written contract to sell and deliver logs and lumber. The case was tried by the court, and at the conclusion of the evidence and the argument, both parties being present, it was shown to the court that the original complaint, in three paragraphs, had been lost; and upon leave of court, and without objection, appellees filed a substituted complaint. The statute expressly authorizes such proceeding. §382 Bums 1901. Such substituted complaint, unless the contrary is shown, is presumed to he an exact reproduction of the original pleading and takes its place as of the date of the original filing with reference to all pleadings filed and proceedings had'subsequent to such original filing.
At a subsequent day, at the same term, and before judgment, the court modified three of its findings and its conclusions of law. These modifications were as to the date when interest should begin, and it is not claimed that they were not authorized from the facts proved. Moreover, as the modifications were all in appellant’s favor, they could not have been to his prejudice. Royse v. Bourne, 149 Ind. 187; Thompson v. Connecticut, etc., Ins. Co., 139 Ind. 325; Dowell v. Talbot Paving Co., 138 Ind. 675.
The court found the facts to be that on the 5th day of October, 1897, appellees and appellant entered into a written contract, by the terms of which appellant agreed to sell appellees certain lumber and logs at an agreed price, in payment for which appellees agreed to execute their three certain notes or acceptances, due in sixty, ninety, and one hundred and twenty days, each in the sum of $2,200; and on the same day appellees executed and delivered to appellant these notes or acceptances, which, at the request of appellant, were made payable to the Peters Box and Lumber Company, a corporation of which appellant was president, and which notes were afterwards by such corporation trans
Objection was made to the introduction in evidence, by appellees, of these notes or 'acceptances. The contract upon which suit was brought provided that appellant was to deliver to ’appellees certain lumber and logs, and that appellees, upon the execution of the contract, should execute to appellant their acceptance for $6,600; $2,200 to mature in sixty days, $2,200 in ninety days and $2,200 in four months from date of contract, which sum appellant was to indorse on his book to appellees’ credit, and, upon the receipt and acceptance of lumber and logs, appellant should charge ■against such credit the amount of such shipments until the amount of such shipments should equal the credit, at which time the contract was to end. These notes or acceptances were certainly competent evidence, under the substituted pleadings, to show a compliance with the contract by appellees. It is true, the payee named is the Peters Box and Lumber Company; but the third paragraph of complaint avers that this company was a corporation of which appellant was and is president, and that the notes were executed to the corporation at appellant’s request, and were afterwards by the corporation assigned by indorsement and delivered to appellant, Who discounted them at a bank, and appropriated the proceeds to his own use, and that all the notes were paid-by appellees as they matured.
Objection was made to the introduction in evidence by appellees of a copy of a letter, the original of which had been placed in an envelope addressed to appellant and properly stamped and mailed at the postofiice. The witness designated the copy as an “impression copy,” by which he said was meant an exact copy. The court, upon application, ordered the production of the original, to which order objec
A letter written by appellees to appellant containing an order for certain lumber under the contract, was not incompetent because the order was given on January 8th, as the contract provided that appellant agreed to furnish all the lumber by the first day of January, if so ordered by appellees, and the condition of the weather and. roads would permit of such delivery.
Only -such objections to the introduction of evidence, as are made to the trial court will be considered on appeal.
If an answer is responsive to a question to which no objection is made, a motion to strike out the answer is not available.
There was no reversible error in permitting a witness to answer what certain lumber agreed to be furnished by the contract was worth from the time of the failure to furnish
One of the appellees testified upon direct examination that they had had offers for certain lumber. Upon cross-examination appellant’s counsel went fully into the question of these offers, and it was disclosed they were in writing; and upon the written orders, which were produced and were in the hands of appellant’s counsel, the witness was cross-examined. As appellant himself had disclosed and had fully inquired about the orders, it was not error to permit the orders themselves to be read as a part of the reexamination of the witness.
Upon cross-examination of one of the appellees it was sought to establish the fact that appellees had released appellant from the delivery of the logs, and by their conduct had. abandoned that part of the contract. The letter contained some matters concerning an offer to compromise that was not proper evidence; and the court stated at the time that this could not be used against appellant, and admitted the letter upon the reexamination of the witness for the purpose of showing the attitude of appellees with reference to a performance of the contract. The letter was properly admitted for the purpose thus limited, — of showing whether appellees had abandoned the contract.
•Several questions argued by counsel may be considered together as they all involve a determination of the proper
It is true, the findings show that appellees had orders for the lumber and logs at certain prices, which orders they were prevented from filling because of appellant’s failure to deliver them; but the value of the lumber -and logs at the time and place of delivery is also stated, and from this basis the damages are reckoned. The particular lumber and logs, not delivered consisted of 100,000 feet of car sills and forty-six hickory logs, twenty-eight to thirty-two feet long. There was evidence that this particular kind of lumber and logs had no particular market value, -and witnesses were permitted to testify as to their actual value. The court states in the findings what the value was at the time and place of delivery. This, from the evidence, means actual value. The market price of a thing is no more than evidence of its.
After a careful consideration of all the questions discussed-by appellant’s counsel, we find no error authorizing’ a reversal. Ro useful purpose would be subserved by lengthening this opinion with a further discussion of some of the questions raised. The record discloses that the case was carefully and fairly tried upon its merits, and a correct conclusion reached.
Judgment affirmed.