Miller v. Buchanan , 10 Ind. App. 474 ( 1894 )

Gavin, J.

The appellant Miller and the appellee entered into a written contract, by the terms of which Miller traded to Buchanan a stock of goods, to be invoiced at the “marked cost price marked thereon.” Each party-deposited in the Farmers’ Bank of Frankfort $1,500, as a forfeit, with instructions to pay over the entire amount of $3,000 to the other party should either fail or refuse to comply with the terms of the contract. After invoicing for two or three days, the parties disagreed as to the price at which some flowers were to be invoiced, whether at so much a bunch or so much a box. The trade thereupon fell through, and the bank paid the $3,000 to Miller over Buchanan’s protest. Buchanan then brought suit against the bank and Miller, claiming the $3,000.

Upon a trial by jury, appellee recovered simply his own $1,500, with interest. From the judgment rendered upon this verdict, the appellants, Miller and the bank, both appeal.

They join in assigning as error that the complaint does not state facts sufficient to constitute a cause of action.

The assignment of error, being joint, can only be sustained by showing the complaint to be bad as to both the appellants. There is no claim by them that this is the case. On the contrary, the only argument presented by appellants in behalf of this assignment is that the complaint must state a good cause of action against both the defendants, and does not do so. This is not the law. Becknell v. Becknell, 110 Ind. 42; Rogers v. Union, etc., Life Ins. Co., 111 Ind. 343; Arbuckle v. Swim, 123 Ind. 208; Louisville, etc., R. W. Co. v. Smoot, 135 Ind. 220.

A number of questions arising upon the instructions and evidence are vigorously discussed by counsel. In the main, we regard the rulings of the court as free from error. In one or two instances, there may be room for considerable doubt. We do not, however, deem it necessary for us to solve these doubts, for the reason that a careful examination of the evidence convinces us thoroughly that a just, equitable, and right result has been reached. Under the evidence given by appellant himself, he could not, by any possibility, be held entitled to retain appellee’s $1,500. This being true, and the trade having fallen through, appellee was clearly entitled to its return.

Filed April 19, 1894.

As is said by the court in Woods v. Board, etc., 128 Ind. 289: “Section 658, R. S. 1881, being section 670, R. S. 1894, contains the following: ‘Nor shall any judgment be stayed or reversed, in whole or in part, when it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below, ’ and this court has many times decided that where the record affirmatively shows that the verdict is right upon the evidence, the judgment will not be reversed because the court has erred in the instructions given to the jury." Ledford v. Ledford, 95 Ind. 283.

Being satisfied that by appellants’ own evidence appellee’s right to the return of his money is fully established, we hold there was no available error in overruling the motion for a new trial.

Judgment affirmed.