*1 settle them, undertake belong to in whatever law questions abstract may presented.") questions

shape such is reversed. BUCHANAN, J.,

SHIELDS, P.J.

concur. and Sandra UPCHURCH Appellants

(Defendants Below), HENDERSON

Earl W. Henderson.

No. 45A03-8605-CV-139. Indiana, Appeals of

Court District.

Third

March

The relationship between Upchurches and the Hendersons deteriorated after the Hendersons missed several contract pay- ments. Approximately one year after the contract formed, was the Hendersons re- turned home day one to find their belong- ings piled outside the Many house. items had been damaged or lost. The Hendersons sued Upchurches for wrongful eviction. The found Up- churches liable and awarded $4,500 Hendersons compensatory damages and punitive $500 damages.1 George Glendening, Hammond, ap- for

pellants. I8 Stephen Goot, R. Hammond, appel- Sandra's Liability lees. First, the Upchurches challenge the jury's conclusion that Sandra was

STATON, liable to Judge. the Hendersons. Upchurches appeal This is from a judgment against challenge the sufficiency of evidence to Joseph and Sandra vendors un- support jury's finding Joseph act der a land sale contract, for wrongfully ed also for Sandra when he wrongfully evicting Earl and Henderson, evicted Upchurches.2 vendees. Upchurches The raise the follow- When reviewing the sufficiency of evi- ing - issues: dence, this 1. will Is neither weigh Sandra's liability evidence nor judge the credibility supported wit- by sufficient nesses. We will consider the evidence? evidence most favorable to the judgment and all 2. Is the $4,500 award of in compensa- reasonable inferences which may be drawn tory damages supported by sufficient from that evidence. If there is substantial evidence? probative evidence of value to support 3. Did the court by err refusing to ad- conclusion of the trier of fact, we must mit a copy of the Hendersons' com- affirm. Martin v. (1984), Ind., Roberts plaint into evidence, when the Up- 904. churches' answer denied the com- Upchurches The point to the fact that plaint's allegations? Sandra did not help Joseph remove any of We affirm the judgment holding Sandra the Hendersons' furniture or other proper liable, uphold and the exclusion of the ty from the Then, house. anticipating an Hendersons' complaint; we remand the is- agency argument, Upchurches assert sue of damages to the trial court. that "there is not a scintilla of evidence Earl and Debra Henderson entered into a Upchurch Sandra either authorized or land sale contract with Joseph and Sandra ratified the acts of her husband, or was in Upchurch for purchase of a house. any way agent." his disagree. The contract required the Hendersons to pay down and per $200 month for question The of the existence of years. twelve an agency relationship is usually one of 1. Upchurches The expressly 3. We assume any waived refer to ques- issue as punitive to the damage award. tion whether acted as agent. Sandra's The do challenge jury's finding that the eviction wrongful. Bonding & Co., University v. Organ Piano McCormick fact. (1981), Ind.App., Surety Co. App., 412 (1980), Ind. Geiger Inc. damages must The 1275, 1288, den. trans. marital relation fact of by in deter than other considered in a manner be ascertainable may properly ship surmise, conjecture, and, speculation, when mere agency, question mining the fairly defi- to some referenced cireum- must be other into consideration taken *3 value, estab- standard, to considerable market entitled such as stances, may be nite from inference direct agency experience, lished recognizes an weight. Id. Fd. the ac known circumstances. implied from is relationship which parties. of the circumstances and tions addressed Supreme Court Our Ind.App., (1979), Moehlenkamp v. Shatz case. in a similar damages of the issue 433, 436. (1974), Ind. 262 v. Bertrand Smeekens here, There, the ven as 431. N.E.2d 311 Sandra's Here, reflects evidence the wrongfully contract land sale under a dors contractual in the involvement extensive the vendees When vendees. ejected the and Hendersons the relationship between seeking party sued, held that the the court the kept all Sandra Upchurches. the or offer vendees) restore (the must recision bookkeeping. She the did all records by received value everything of restore to issued payments the contract collected including rea contract, the the under them to our And, important most receipts. the for the premises of the value rental sonable that, determination, herself testified she N.E.2d at possession. they had time Hendersons, she the evicted after Joe by damages sustained Therefore, any 436. repos "we've that Henderson told val by the offset must be Hendersons the (Our emphasis.) house." the sessed contract. under the they ue received holding the of affirmance Our role limited by our is dictated liable Sandra favorable evidence According to the fact-finding process: reviewing jury's the in by the award, damages sustained the to the Jo inference that a reasonable if there is First, the as follows. are Hendersons our it is agent, then as Sandra's seph acted of the return to are entitled Hendersons a is also though there even duty to affirm $2,000, and of of payment their down he did not. Mon that inference reasonable the con made on they payments in (1985), Franko Ins. Co. umental Next, Hendersons Life tract. Smeekens. In the improve for compensation to are entitled reasonable case, inference is present shows The evidence by them. made ments agent when as Sandra's Joseph acted on that expended $330 Hendersons Therefore, we Hendersons. Finally, he evicted improvements. such San jury's conclusion affirm must compensation to entitled are Hendersons is liable. dra this While property. damage to their for favorable the evidence disputed, is amount IL. totalling $599. losses shows the award to then, is damages, these of The subtotal Damages jury's award than the more $4,529, slightly challenge the next Upchurches The $4,500. of compensatory $4,500 in of award jury's Hendersons. damages to the enti are However, As the Smeekens set-offs. to certain tled challenge to a reviewing a In noted: , only the award, will consider damage right, have a vendors] The Smeekens [the Duchane the award. to favorable evidence the reason- law, set-off to a matter as Ind.App., 400 of v. Johnson for premises rental value able compen for support an award possession Bertrand's period exist and must damages, facts satory ... which payments the total against legal a afford which by the evidence shown Al by the Smeekens. returned must be loss. plaintiff's measuring the basis lowing the Bertrands to recover The got wife these it from somewhere. I don't payments ... without a set-off know if she bought it or if it for rea- gave sonable rental value would result in obvi- her. ous unjust enrichment. agree must with the following 311 N.E.2d at (Original emphasis.) by observation Upchurches: It was precisely on evidence regarding such matters that the reasonable rental value of property must came from reached verdict, their but it - is respectfully suggested who testified that that there is no evidence in rental record value was support per month, a $200 same valuation amount the items. Hendersons had been such paying on the contract. The apparent- As the record contains no evidence of value ly possession for twelve months. for any of items, these the award of dam Therefore, entitled, are ages as for them must be based on mere *4 a law, matter of conjecture, to a speculation, $2,400 set-off of or Thus, surmise. the reasonable rental value of their the proper- award cannot stand.4 ty. This would reduce the $2,129. award to III. up make $2,400 for the difference, Hendersons argue that must have Exclusion the Hendersons' of awarded damages for certain items which Complaint alleged were to be lost or damaged, but for Finally, the Upchurches argue that the

which no evidence of value was introduced. court erred in refusing to admit For example, Earl Henderson testified as Hendersons' complaint into evidence. The follows: Upchurches offered complaint judi- as a We had some antique ceramics that Deb- cial admission that paid bie got had from her ma from grand- her $1,080 on the contract, rather than the mother, and other little things that was $1,600 reflected in the Hendersons' testi- all thrown in (1) one box and mostly mony. all of them was busted or had little men The Upchurches concede gen legs their off and stuff like that. that, eral rule where an adverse party de you purchase Did any of those? nies an allegation in a pleading, such alle No, I did not. gation cannot thereafter be used as an

They given were all you? admission. State Highway Yes, Comm'n v. unless my (1982), Vanderbur wife had bought couple Ind.App., a 418, 432 422, of N.E.2d them. I don't Here, reh. den. know. Upchurches denied the truth of you Were aware of their value? allegation Hendersons' they that paid had Not too sure on the value of that kind of on contract. stuff. Hendersons' allegation cannot now be used Earl Henderson further testified: as an admission. you Did have a mirror from the kitchen? urge, however, Yes, we left a forget mirror. I the exact that they had no choice but to deny the size of it. It was a pretty good-sized allegation that the Hendersons had paid mirror that put above the kitchen $1,080, since Upchurches' position sink and it right went in between the paid Hendersons had even less just cabinets right and it pretty looked than that amount. A similar theory was

nice. presented in Brown v. (1951), Grzeskowiak you Did buy it? 230 110, Ind. N.E.2d reh. den. 4. Hendersons arguments make other involving correct that these items could be included in the property tax and award, insurance costs in their at- the amounts of the items would fall far tempt to buttress the they award. Even if making up short of $2,129. the difference of 1124; v. Downham she asserted also There, the defendant Ind.App., 408 (1980), in allegation Wagner deny choice but had no stated: The court question. of an himself wishing to avail party

A of pleading ain averment or

admission as an accept it must party

the adverse * * * up, it split cannot He entirety. of the benefit it, claim of accept part * * * Moreover, can- party a result. LTD., PROPERTIES, ADULT GROUP admission of an advantage take (Defendant Below), al, Appellants et he adversary where his pleading allegation of the truth denied has Imler, Mary Ann IMLER and Richard though the even it ... upon issue joined (Plaintiff Appellees Below). one. indirect an denial 48A02-8604-CV-124. No. if the Even at 645. deny, admit inability to an pleaded Indiana, Appeals of Court matter placed the would response District. Fourth Rules as a denial. in issue March 8(B); Manhat Chase Procedure, Rule Trial April Rehearing Denied Co., Inc. Tire v. Lake Bank tan *5 Up- excep an us that persuade do not churches appropriate is rule general to

tion

here.5 portion affirm recapitulate, Upchurch declaring Sandra uphold We Hendersons.

liable to Hendersons' to admit refusal

court's remand We into evidence.

complaint a determination the trial

cause opinion. this with consistent damages J.,

HOFFMAN, concurs. opinion P.J., with

GARRARD, concurs HOFFMAN, J., concurs.

in which Judge, concur- Presiding

GARRARD,

ring. presented here the circumstances Under sepa I write majority.

I concur deci that our to underscore merely

rately tradi from the departure no presents

sion spouse is that one in Indiana rule

tional the other. agent of to be

presumed Bank City Nat'l.

See, e.g., Uland con- on the paid Earl she and extensive presented parties note that refusing to error any possible con- tract. amount regarding the total testimony complaint was harmless. fact, admit In payments. tract to whether as Henderson question able