55 Ind. App. 605 | Ind. Ct. App. | 1914
The complaint was in two paragraphs, the first declaring for a balance due upon a contract between appellee’s decedent and appellant, for dipping gravel, the second declaring upon account for the work and labor performed by her decedent in dipping gravel for appellant. There was an answer of general denial and plea of payment, and reply in general denial. The cause was tried by the court. The errors assigned and presented to this court are that the court erred in overruling appellant’s motion for new trial, upon the grounds that its decision was contrary to law and not sustained by sufficient evidence, and that the court erred in its conclusions of law upon the facts found.
The finding of facts is in substance as follows: (1) On September 10, 1908, defendant Lemuel S. Todd and Herman Barlow entered into and executed in duplicate a certain contract in writing, of which a copy is set out, and by which Barlow agreed to dip or hoist 4,000 cubic yards of gravel on the Ed Rawlings road, for which Todd was to pay him 27-¿ cents per yard, eighty per cent to be paid as the commissioners gave estimates on the road, and the remaining twenty per cent as soon as the gravel was dipped. (2) On October 21, 1908, Barlow sold and assigned his gravel dipping machinery and the uncompleted part of said contract and another contract to decedent Henry H. Guffin, by and in accordance with the terms of a certain deed of sale and contract of writing executed between the parties, of which a copy is set out, which states that Barlow sells and delivers all of his hoisting machinery and all his rights, titles, interests and benefits in the said contract between him and Todd above mentioned, and the other contract, and appoints Guffin his agent to act in his stead in the collection of all sums of money accruing under said contracts and authorizes and empowers said Guffin to do the things and perform the
“Power of Attorney.
Know All Men By These Presents, That I, Herman Barlow of Johnson County, Indiana, constitute and appoint Henry H. Guffin of Marion County, Indiana, my true and lawful attorney and agent for the fulfillment of a certain contract heretofore entered into on September 10, 1908, with L. S. Todd and also with G. W. Bacon, for the hoisting of gravel, which contract is hereto attached and made a part hereof, and by such power herein granted, I authorize the said Henry H. Guffin to do all of said work therein contracted by me to be ¿Tone and collect all money under said contract due to me and to receipt for the same in my name and stead, and I bind myself to such acts by him done the same as if I were present and did them myself. Witness my hand and seal this 21st day of October, 1908. Herman Barlow.”
(4) There were dipped from said pit and received by defendant Todd and used in the construction of the Rawlings road in all 3,840 cubic yards of gravel, being all that was required for the completion of the road, which was completed and the final estimate paid to defendant Todd as contracted on September 6, 1909. (5) Of said amount, there were dipped before the execution of said contract and bill of sale to decedent Guffin, 1,049 yards. (6) On December 8, 1908, there was deposited by defendant Todd in the Farmers Bank of Sheridan the sum of $528 and a certificate of deposit issued therefor in favor of Barlow, and at the same
The court’s decision was not contrary to law, and was sustained by sufficient evidence, and the conclusions of law were not erroneous on the facts found.
Judgment affirmed.
Note.—Reported in 104 N. E. 519. As to power coupled with an interest, see 110 Am. St. 860. See, also, under (1) 4 Cyc. 62; (3) 30 Cyc. 1290; (4) 18 Cyc. 202.