15 Ind. App. 693 | Ind. Ct. App. | 1896
Appellee alleges, in Ms complaint, that, in October, 1894, he and the appellants were engaged in the business of raising and moving buildings in the city of Elwood, Indiana, under separate firms, and were competitors in said business, at said place;
Issues having been joined, the cause was submitted to the court for trial, and, at appellants’ request, there was a special finding and conclusions of law thereon.
The first assignment of errors is that the court erred in overruling the appellants’ motion to strike out paragraphs four and six of the special findings. Under our practice, a motion to strike out parts of a special finding is not authorized. The remedy, when the court fails to find all the facts, or finds facts contrary to the evidence, is by motion for a new trial. Sharp v. Malia, 124 Ind. 407.
The next specification of error challenges the correctness of the court’s conclusion of law upon the special findings.
We do not think thé special findings open to the objection that they fail to show that appellants continued to conduct their business for any length of time after they sold out to appellee, or that it appears that appellee voluntarily ceased to conduct his business at any time after his purchase. In the absence of any finding to the contrary, it will be presumed that appellee continued in the business, and the burden would be on the appellants to show that appellee voluntarily abandoned the operation thereof. The fifth finding discloses that within a few days after the appellants had sold to appellee their tools, etc., the appellants, in violation of their contract, bought a new outfit of house-moving tools, and went into competition with appellee in the city of Elwood, and began bidding against appellee for work in said business, and taking, filling, and performing contracts for house
Nor can we say that the court applied a wrong rule in measuring the damages. It is true, the court finds that the appellee’s tools, prior to the breach, were worth $150.00, while immediately after said violation of the contract they were only worth $100.00. The appellants’ counsel contend that as the court found the damages to be $50.00, it must have taken the difference between the value of the tools before and after the breach to be the measure of damages. Assuming, without deciding, that this would not be the proper measure of the appellee’s damages, we do not think it conclusively follows, from the above mentioned finding that the court adopted the method referred to as the criterion by which it measured appellee’s loss.
There is a finding that the appellee has sustained a damage by the violation of the contract, in the sum of $50.00. When the entire findings are considered as a whole, we think it fairly appears from them, independently of the finding with reference to the deterioration of the value of the tools, that the appellee’s loss from the breach of contract was $50.00. Hence we are of the opinion that the judgment can be sustained, if we disregard the finding touching upon the value of such tools.
Another specification of error arises from the overruling of appellants’ motion for a venire de novo. The grounds for this motion are: First, that the findings are without the issues; and, second, that the special findings were not signed by the judge.
If there are some findings not within the issues, and by disregarding these there is still enough left upon which the judgment may be upheld, the court will disregard the portion outside of the issues as surplusage. This, we think, is true of. the findings before us.
As to the failure of the judge to sign the findings, it is proper to say that the signature appears after the conclusions of law, although not at the end of the findings proper. As was said by the Supreme Court in a recent case: “No good reason is perceived why the signature of the judge may not follow the conclusions of law and constitute a sufficient signing by him of the special finding.” Ferris v. Udell, 139 Ind. 579 (593).
Judgment affirmed.