79 Ind. App. 501 | Ind. Ct. App. | 1923
Appellee sued appellants on an account for labor and material, used principally in constructing a well, and recovered a judgment for the sum of $708.19 and costs, based on the following verdict: “We, the jury find for the plaintiff, that he recover of and from the defendants, the sum of $615.09, with interest thereon from the date of November 23, 1918, at 6 per cent.” Appellants filed a motion for a new trial, which was overruled, and this appeal followed.
It is contended that the court erred in giving instructions Nos. 9, 10, 12, 13 and 16, on its own motion. Appellee asserts that the record fails to show that any exception was taken to the giving of said instructions, as such fact is not shown by a bill of exceptions, and there has not been a compliance with §§560 and 561 Burns 1914, §535 R. S. 1881, Acts 1903 p. 338, or either of them, in that regard. In making this contention appellee is in error, as the record shows an exception to each instruction given by the court on its own motion, which we assume were taken orally, in compliance with said §561 Burns 1914, supra. Roach v. Cumberland Bank (1916), 60 Ind. App. 547, 111 N. E. 320; Miller, Exr. v. Kifer (1921), 75 Ind. App. 198, 130 N. E. 278.
Appellee also asserts that no question is presented by appellants’ brief, in regard to the action of the court in giving said instructions, as all of the instructions given are not set out therein. The
We will now proceed to determine whether the court erred in giving any one or more of said instructions.' Appellants contend that the court, in instruction No. 9, erroneously directed what inferences of fact should be drawn from other facts, if it was found that such other facts had been- established. It is well settled that it is an invasion of the province of a jury to give an instruction as to what inferences should be drawn from established facts, unless the specific conditions and circumstances are of such a character that no other reasonable inferences could be drawn therefrom. Pittsburgh, etc., R. Co. v. Arnott, Admx. (1920) , 189 Ind. 350, 126 N. E. 13, and cases cited. Under this rule the criticism of said instruction is not without merit, and especially as to appellant, Reming
We have carefully considered said instructions Nos. 10, 12 and 13, in connection with the objections urged against the same, and find no reversible error in the action of the court with respect to any one of them, in view of all the instructions given.
By instruction No. 16 the court informed the jury, that if it found in favor of appellee against both appellants it should include In Its verdict interest on the amount found due on the account in suit from November 23, 1918. As there was no evidence of any agreement to pay interest, this instruction was not proper, unless the undisputed evidence shows that the account matured on that date, and there had been long and unreasonable delay thereafter in making payment. Where one furnishes material, or performs labor for another, the presumption is, in the absence of an agreement to the contrary, that an account therefor becomes due when the same has been so furnished or performed. Salinger v. Rupel (1922), 78 Ind. App. 197, 133 N. E. 514. In the instant case, there is evidence tending to show that at the time appellee was engaged to furnish the material and perform the labor in question it was agreed, as an inducement for his employment, that he would not exact payment upon the completion of the well, but would give time therefor; and that pursuant to said agreement, time for payment was impliedly requested, and tacitly granted in more than one instance, without any definite date for payment being fixed. It has been held, that what constitutes long and unreasonable delay in the payment of an account depends, necessarily, to some extent upon the circumstances of each case, and therefore, ordinarily, the question involved is one of fact for the jury. Rogers v. West
