26 Ind. App. 630 | Ind. Ct. App. | 1901
Appellee filed a claim against the estate of appellant's decedent for damages for the breach of a contract for the exchange of lands. Appellant answered in denial. Trial by jury, verdict in appellee's favor, and over a motion for a new trial judgment was rendered on the verdict for $19,304.10. The errors assigned question the sufficiency of the complaint or claim, and the denial of a new trial. Each of the four paragraphs of appellee's claim is based.upon the following contracts: “In this contract, E. H. Shirk is to deed John Lingeman, or order, 2,560 acres of land in Craighead county, Arkansas, or 3,840 acres in Poinsett county, he to select, taking the land in a body
“Peru, Indiana, December 4, 1874. The price the said Shirk pays the said Lingeman for his 226 acre farm is $27,000, and the price the said Lingeman takes the Arkansas land at is $17,000. E. H. Shirk, John Lingeman.”
The supplemental contract is in these words: “In this contract, referring to a contract made December 4, 1874, in which E. H. Shirk was to deed John Lingeman 2,560 acres of land in Craighead county, or 3,840 acres in Poinsett county, or an equivalent in value in Clayton county, township 20, range 4 east, Clayton county, Arkansas, the amount to be decided he would be entitled to in Clayton county by T. B. Mills. Lingeman now elects to take 1,703 acres in Poinsett county, township 12, range 5 east, and the residue in township 20, range 4 east, Clayton county, Arkansas. The number of acres he is entitled to to be decided by T. B. Mills. Deed to be made subject to all taxes accruing since December, 1875. Selection to be made within three months. This instrument has reference to that part of original contract made December, 1874, which refers to the Arkansas lands only, and the note of Botmer and wife, which I release
Upon the former appeal the contract was construed to be a contract for the exchange of lands with certain prices affixed to’ each, the difference to be paid in money. The two paragraphs of complaint on that appeal were held sufficient. Lingeman v. Shirk, 15 Ind. App. 432. On reversal these two paragraphs were amended but the same cause of action is stated in the amended paragraphs that was in the original paragraphs. No change was made in the issues for trial. The ruling on the former appeal as to the first and second paragraphs is the law of the case on this appeal. An amendment which does not substantially change the character of the pleading does not take the case out of the rule. City of Logansport v. Humphrey, 106 Ind. 146; Nickless v. Pearson, 126 Ind. 477; Poulson v. Simmons, 126 Ind. 227; Continental Ins. Co. v. Houser, 111 Ind. 266; Johnson v. Hosford, 110 Ind. 572; Elkhart, etc., R. Co. v. Waldorf, 17 Ind. App. 29; State, ex rel. v. Christian, 18 Ind. App. 11.
In Elliott’s App. Proc. §578, the rule is thus stated: “It is a firmly settled principle that the decisions of the appellate tribunal constitute the law of the case upon all the points in judgment, no matter at what stage of the proceedings they arise, or in what mode they are presented. This rule is not one springing from the doctrine of stare decisis, but it is one founded upon the same principle on which rests the doctrine of res adjudicaba. Questions before the court for decision, and by the court decided as essential to a final judgment, are conclusively and finally adjudicated. The law as declared can not be changed upon a second or subsequent appeal.” Hatfield v. Cummings, 152 Ind. 537; Brunson v. Henry, 152 Ind. 310.
The only error argued on the former appeal was the sufficiency of an answer of the six years’ statute of. limitations, and the court stated that this plea was sustainable only upon
Each paragraph of the complaint now, as on the former appeal, is based on the written contract. This contract was construed on the former appeal and by that construction we are concluded. The construction thus given must determine the theory upon which recovery is sought. That theory, as we construe each paragraph of the complaint, is for a’recovery of damages for the breach of a contract for the exchange of lands. It is unnecessary to repeat, what was said in the former opinion as to the duty of appellee to select the land he wanted and the effect of the failure of Mills to act as required in the contract.
By the contract Mills was to decide the difference in value should island land be selected, and when it was agreed that the residue should be in Clayton county, Mills was to decide the number of acres. The first paragraph avers that Mills never did so decide, nor did Shirk ever convey any of the island land, although frequently requested to have the difference in value decided by Mills, and the second paragraph avers that Mills was Shirk’s agent, having general management and control of his Arkansas lands.
The referee, who was to decide the difference in value should appellee select island land, and who was to decide the number of acres appellee should receive, was agreed upon when the contract was made. It is true Mills was to act for both parties, but when appellee had parted with his property and had made selection of the lands he would take in exchange, and had notified Shirk and Mills of such selection, it then became the duty of Shirk through Mills ix> determine the relative value of the lands in the two counties, and the number of acres, and the failure or refusal of Mills to act was a breach of the contract by Shirk. Appellee had m> authority under the contract to select another referee. The referee was named in the contract-. When appellee had done what the contract required he should do, he had done all
The third paragraph sets out the same contract, avers ownership of the Hendricks county farm, and its value as $27,000, that decedent, Shirk, sought out appellee with the view of purchasing or otherwise becoming the owner of appellee’s farm, and to that end represented that he owned in fee 2,560 acres of land in Craighead county, and 3,840 acres in Poinsett county, Arkansas, either of which was of the value of $17,000, that he also owned in fee lands in Black river island in Clayton county, Arkansas, of like value; that thereupon the contract was made for the sale by appellee of his farm to .Shirk for $27,000 and to pay for the same Shirk assumed a $5,000 mortgage on the farm, and was to pay appellee within ninety days $5,000 in cash, and to convey to appellee by warranty deed either 2,560 acres of Craighead county land or 3,840 acres of Poinsett county land, or $17,000 worth of land in Clayton county, the price per acre to be fixed by T. B. Mills, the lands in Arkansas to be selected by appellee; that after the contract was written
The averments of the fourth paragraph are substantially the same as the third, with the additional averments “that in the meantime the said Shirk and said Mills had combined
The contract as we have said was a contract for the exchange of lands, the difference' to be paid in money. The prices fixed were the relative values, and must be held to have been intended as a basis for such exchange. The actual market value of the lands may have been the amounts stated, or it may have been more or less. The value of the 2,560 acres and of the 3,840 acres was fixed each at $17,000. The complaint seeks only to recover the value of the land which appellee did not receive. He did receive 1,703 acres of the Poinsett county land. Eor the purposes of the exchange the parties had agreed this land was worth a certain amount per acre. This must be true, for in no other way could it be determined the amount of land appellee was still entitled to receive. When he had received a certain number of acres
Each paragraph of the complaint in the case at bar shows the nature- of the claim, and the demand, contains a copy of the- contract upon which the claim is based, and contains enough to bar another action for the same demand. Under the above rules this is .sufficient. There was no1 error in overruling the demurrers.
Certain other questions are discussed which arise under the motion for a new trial. Appellee’s counsel earnestly insist- that the evidence is not in the record. If this is true the remaining questions discussed are not presented. The motion for a new trial was overruled October 25, 1899, and appellant- was allowed ninety days from that date in which to prepare and file bills of exceptions. Judgment was rendered December 20, 1899. Under date of December 27, 1899, occurs the following: “And the said reporter now
The record next recites, under date of January 8, 1900: “Come again the parties by their respective attorneys and the said defendant now files his bills of exceptions herein signed by Hiram S. Biggs, judge of said court, in these words, to wit”. This is followed by instructions requested by appellant and instructions given by the court, and comprise of tlie transcript pages 601 to 652, inclusive. On the following page- is this entry: “And the said defendant also files his further bill of exceptions, signed by Hiram S. Biggs, judge of said court, containing the longhand manuscript of tire evidence in said cause, which is as follows, to wit”. This is followed by the usual recital that the cause came on for trial, that the evidence was heard, taken down in shorthand, transcribed by the reporter, and the longhand manuscript filed in the clerk’s office, December 27, 1899, as a paid of the record, “which said original longhand manu
From the above it appears that there was at first no attempt to bring the evidence up by a bill of exceptions, but that it was sought to bring it into the record under the provisions of the act of March 3, 1899, although the record fails to disclose that any time was fixed by the trial court within which the reporter should file the transcript of the evidence with the clerk. But the supreme court has recently held (Adams v. State, 156 Ind. 596), that the sixth section of the act of March 3, 1899 (Acts 1899, p. 384) is invalid for the reason that that section required the judge to accept as true and correct' that which the reporter has prepared and filed with the clerk, and that the judge should attach his certificate thereto to that effect. The sixth section is the only part of the act of 1899 that makes any provision for bringing the evidence into the record.
Nor does the bill of exceptions of January 8, 1900, bring the evidence into the record. The longhand manuscript of the evidence must be incorporated in the bill of exceptions and can not be brought into the bill by reference. Patterson v. Churchman, 122 Ind. 379; Ohio, etc., R. Co. v. Voight, 122 Ind. 288; Board, etc., v. Mutchler, 137 Ind. 140; Morningstar v. Musser, 129 Ind. 470.
It does appear that the evidence was filed by the reporter in the clerk’s office, and that the judge certified that that evidence which was so filed is correct. We might be authorized to hold this a sufficient bill of exceptions without a
Judgment affirmed.