120 Ind. 142 | Ind. | 1889
The complaint in this cause avers that on and from the first day of October, 1884, to the 30th day of May, 1885, the plaintiff, at the special instance and request of the defendant, cut timber, hauled logs and lumber, sawed logs into lumber, planed lumber, and loaded cars for the defendant, a bill of particulars of which is filed with the complaint and made part thereof; that said labor and services were worth $1,200, which is due and unpaid.
A demurrer to this complaint was overruled, and the appellant excepted. The appellant then filed his answer, in three paragraphs. The first is a general denial; the second
The appellee replied, by way of general denial. The cause was tried by a jury, who returned a verdict for the appellee. Over a motion for a new trial the court rendered judgment on the verdict. The appellant assigns as error, in this court:
First. That the complaint does not state facts sufficient to constitute a cause of action.
Second. That the court erred in overruling the demurrer to the complaint.
Third. That the court erred in overruling the appellant’s motion for a new trial.
No question is made in the brief of counsel as to the sufficiency of the complaint, and for that reason the first and second assignments of error are to be regarded as waived.
The appellant assigns as reasons for a new trial that the court erred in its instructions to the jury. The fourth instruction given b'y the court, on its own motion, was as follows :
“ 4th. If the defendant had a contract with the plaintiff, such as he has asserted in the third paragraph of his answer, and if the plaintiff sawed the 10,899 feet, or any other number of feet, of lumber for pump stocks so unskilfully or negligently that it was not marketable for pump stocks, because of not being sawed according to contract, and in consequence thereof the defendant was damaged, then you should allow him for such damage; and the measure of damages in such case would be the difference between the market value of the lumber as it was sawed and its market value if it had been sawed as agreed upon, or as it ought to have been.”
It is claimed by the appellant that this instruction is erroneous, as the contract itself furnished the rule of damages.
The tenth instruction given by the court was as follows: “ 10th. Whether, if any of the sawing was done defectively, or of under-width for pump stocks, the same could not have been avoided, with proper care, you must determine from the evidence. If it could not be avoided, with proper care, then it could not be said to have been done unskilfully; but if, with proper care, said under-width could have been avoided, then to saw the same in under-width would be un-. skilful.sawing. How this was, is a question of fact, to be determined by you from the evidence.”
It is urged that this instruction is erroneous, for the reason that if the appellee agreed to saw the lumber in a particular manner, a failure to do so would render him liable to the damages occasioned thereby, without regard to the question of skill. We do not think this instruction is subject to the objection urged against it.
As will be seen, the appellant, in his answer, predicates his right to recover damages upon the unskilful, careless, and negligent manner in which the lumber was sawed. The instruction was directed to a question involved in the case as made by the issues and evidence in the cause, and directed the attention of the jury, properly, to a question of fact before them for their consideration.
It is also claimed by the appellant that in the sixth instruction given by the court, the court assumed the existence of a fact about which there was a conflict in the evidence, and
Had the appellee recovered for all the items proven on the trial, his verdict would have been much larger than that recovered. No witness attempted to give the condition of the accounts between the parties, except the appellee. He testified that after the labor was all performed he and the appellant had a settlement, in which it was ascertained that the appellant owed him $441.43, and that he agreed and promised on several occasions to pay it. The appellant did not deny this statement, and the jury returned their verdict for that sum. The verdict and judgment are right under the evidence, and we find no error in the record.
Judgment affirmed.