31 Ind. App. 252 | Ind. Ct. App. | 1903
Appellant was plaintiff below. The cause has been twice tried. Upon the first trial a verdict was returned in favor of the appellant for $300, and his motion for a new trial was sustained. Upon the second trial a verdict was returned in his favor for $250, upon which verdict judgment was rendered. He moved the court for judgment for $1,160.68, on the answers to interrogatories returned by the jury with the general verdict.
The complaint alleges that on the 18th day of August, 1899, the appellant, in writing, proposed to install for the appellee, at the town of Troy, Indiana, for the sum of $4,145, an electric light plant, complete; that on the 21st day of August, 1899, the appellee, in writing, accepted this proposal (the terms of the payment were agreed upon, and attached to the proposal and acceptance, all being referred to as exhibits A and B) ; that appellant was preparing to perform his part of the contract, and was ready and willing at all times to do so; that on September 9, 1899, the appellee wrongfully repudiated the contract and refused to be hound by it; that the appellant could have earned the sum of $1,160.68 out of said contract, and prays damages in that sum. The exhibits referred to are filed with the complaint. To this complaint appellee filed an answer in two paragraphs, the second paragraph of which was a general denial. The first alleged, in substance, that appellee was a priest; that he had long and favorably known Beckman, Dilger & Co., of Ferdinand; that these people,
It is averred in the answer that at the time he executed and signed said paper he “did not give any attention to the wording of the beginning and closing” of said alleged contract; that he “only gave his thought and concern 'to the
The questions discussed are the action of the court in overruling appellant’s demurrer to the appellee’s amended answer in one paragraph, and in overruling appellant’s motion for judgment on the answers of the jury to interrogatories, notwithstanding the general verdict. In Robinson v. Glass, 94 Ind. 211, the Supreme Court, speaking hy Elliott, I., says: “Ordinarily, one contracting party has no right to rely upon the statements of the other as to the character or contents of a written instrument (this, indeed, is only another form of stating the general rule) ; but while this is true2 it is also true that if a known trust and confidence is reposed in the person making the representations, and there is a relationship justifying such trust and confidence, then the person to whom the representations are made may rely upon them.” Shaeffer v. Sleade, 7 Blackf. 178; Peter v. Wright, 6 Ind. 183; Bischof v. Coffelt, 6 Ind. 23; Matlock v. Todd, 19 Ind. 130; Worley v. Moore, 77 Ind. 567; 2 Parsons, Contracts (7th ed.), 774. See, also, Nebeker v. Cutsinger, 48 Ind. 436; Dutton v. Clapper, 53 Ind. 276; Miller v. Powers, 119 Ind. 79, 4 L. R. A. 483.
In Pomeroy, Eq. Jurisp. (2d ed.), §892, the rule is thus stated: “As a generalization from the authorities, the various conditions of fact and circumstance with respect to the question how far a party is justified in relying upon the representation made to him may be reduced to the four following cases, in the first three of which the party is not, while in the fourth he is, justified in relying upon the statements which are offered as inducements for him to enter upon certain conduct: (1) When, before entering into the contract or other transaction, he actually resorts
The facts pleaded do not show that appellant sustained a relation of trust and confidence to appellee. It is a fundamental principle that a man is bound to use ordinary care and diligence to guard against fraud and imposition, and that, if he fails to do so, he can not obtain relief from the courts. Clodfelter v. Hulett, 72 Ind. 137, 144, and cases cited. It appears from the averments of the answer that the relation of appellant and appellee were not such as to justify the existence of trust and confidence. Appellee was an intelligent man — a man of affairs. It is not alleged that the agreement in question was not read to bim, nor that he did not have an opportunity of reading it, before affixing his signature thereto. He had had no business, and no previous acquaintance, with appellant. The means of information as to the nature and contents of the agreement were within his immediate reach, and he neglected to avail himself of them, when it was clearly his duty to do so. To hold that, under the circumstances, he was excused from so doing, would be a dangerous precedent.
It is contended by appellee that the remaining specification of error discussed represents no question, for the reason that if appellant claimed that the answers to interrogatories entitled him to an amount greater than that
The first paragraph of answer was pleaded in bar. The court erred in overruling the demurrer thereto, but, as the jury found for -the appellant, the ruling was harmless.
The question being properly presented by tfie motion for judgment on the answers to interrogatories, is appellant entitled to an amount greater than that fixed by the verdict ? The measure of damages for the breach of the contract in question is “the difference between the contract price, the amount which he would have earned and been entitled to recover on performance, and the amount which it would have cost him to perform the contract.” Fairfield v. Jeffreys, 68 Ind. 578, and cases cited.
In Froman v. Rous, supra, the court say: “We have no doubt that a plaintiff may be awarded a larger sum than that stated in the general verdict, if the answers show him entitled to it. Where the facts specially found clearly show that the jury have érred in computing the amount of recovery, there is a conflict between the answers and the general verdict, and the former must control. There may be an inconsistency between a general verdict and the answers to interrogatories, although the general verdict is favorable to the party who prays judgment on the answers.”
The answers to interrogatories show every fact essential to establish the averments of the complaint. They show that the contract price of the work was $4,145, and that it would have cost appellant to perform the contract $2,-
The judgment is reversed, with instruction to sustain appellant’s motion for judgment on the answers to interrogatories for $1,160.68.
Robinson, O. J., Wiley, Roby, and Henley, JJ\, concur; Black, J., dissents.