77 Ind. App. 419 | Ind. Ct. App. | 1921
Action by the State of Indiana, on relation of J. B. Speed and Company, hereinafter designated appellant, to recover on a contractor’s bond given to the commissioners of Dubois county, conditioned that appellees Edgar Traylor and Andrew B. Krempp then partners doing business under the name of Traylor and Krempp should perform their contract with said commissioners for the building of a certain system of roads in said county known as the Ferdinand Township Rock roads and that they would pay all debts incurred by them in the prosecution of said work including materials furnished for that purpose.
The complaint alleges that appellant furnished material to said contractors for the construction of said roads and that there was a balance of $2,744.04 due appellant. Appellees answered general denial and payment. From a judgment in favor of appellees appellant appeals and assigns as error the action of the court in overruling its motion for a new trial.
The facts as disclosed by the evidence insofar as they are material are in substance as follows: Edgar Traylor and Andrew B. Krempp as partners doing business under the name of Traylor and Krempp were, in August, 1916, awarded a contract by the commissioners of Dubois county for the construction of a certain system of rock roads and executed and delivered to said commissioner the bond sued on, which was signed by appel
Appellant’s main contention is that the decision is not sustained by the evidence and is contrary to law, while the main contention of appellees is that the stone was sold to the corporation instead of to the partnership and that it was paid for by the negotiable promissory notes of the corporation. They also contend that appellant without their consent extended the time for the payment of the debt and agreed to accept and did accept the notes and agreement of the corporation whereby the corporation became liable to appellant for the amount of the indebtedness.
It follows from what we have said that the finding of the court is not sustained by the evidence, and is contrary to the law when applied to the facts.-
Judgment reversed with directions to grant a new trial and for further proceedings not inconsistent with this opinion.