79 Ind. App. 114 | Ind. Ct. App. | 1922
On May 29, 1916, appellant T. Frank Willis and one T. J. Oliphant entered into a written contract whereby the former was to construct for the latter a six-story, fire-proof office building, according to certain plans, specifications and drawings. On June 5, 1916, the said Willis, together with his coappellants Klemeyer and Davis, executed to said Oliphant a bond in the sum of $20,000, which by its terms, should be void if said Willis should perform his part of said contract, pay all indebtedness incurred by him in so doing, complete the building free of mechanics’ liens, etc. Said bond also contained the following provision: “This bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, ac
Appellee has raised a number of questions with reference to appellant’s brief, some of which appear to have merit, as disclosed by the opinions in the following cases, but which we have not considered, in view of the conclusion reached with reference to the questions which appellants have attempted to present: Board, etc. v. Shedd (1920), 72 Ind. App. 160, 125 N. E. 656; Clemens v. Stoner, Exr. (1920), 73 Ind. App. 370, 126 N. E. 487; Rose v. City of Jeffersonville (1916), 185 Ind. 577, 114 N. E. 85; Thomas v. Hermes (1922), 78 Ind. App. 275, 135 N. E. 392.
Appellants complain of the action of the court in admitting certain evidence, and state in their brief that they objected to its introduction on the ground “that it is not competent or relevant for any purpose.” It is well settled that the only objections to the introduction of evidence which this court will-consider are those made in the court below at the time of the offer, and that, to present a question with reference thereto, the complaining party must set out in his brief what such objections were. Irvine v. Baxter Stove Co. (1919), 70 Ind. App. 105, 123 N. E. 185; American, etc., Co. v. Indianapolis, etc., Fuel Co. (1912), 178 Ind. 133, 98 N. E. 709. Since the only objection to the evidence
The only remaining question, which appellants have attempted to present in their propositions or points, relates to the sufficiency of the evidence to sustain the decision on which the judgment is based. The contention in this regard is, that the contract between said Willis and Oliphant for the construction of the building in question forms a part of the basis of appellee’s action; that, this being true, it was essential to his right of recovery, that such contract be introduced in evidence; that the original thereof was not so introduced, and secondary evidence was given of only a portion of the same. We cannot agree that appellee’s action is based in part on the contract between appellant Willis and said Oliphant, but, on the contrary, hold that the bond given to secure its performance is the foundation of the action. Conn v. State, ex rel. (1890), 125 Ind. 514, 25 N. E. 443; Harris v. International, etc., Constr. Co. (1916), 62 Ind. App. 64, 112 N. E. 532. While this is true, appellee could not have recovered by introducing the bond alone, as it was necessary for him to show that he performed labor or furnished material in the construction of said building, by reason of which appellant Willis became indebted to him, and for which he was entitled to a lien thereon.
There was evidence tending to show that the original contract was lost, and on which the court admitted secondary evidence of its contents. Appellants do not claim that this showing was insufficient, but contend that evidence of the entire contract should