Summary
holding that trial court did not err in awarding interest on account stated where monthly statements were sent and no objection was lodged thereto until months later
Summary of this case from Sollers Point Co. v. ZellerOpinion
No. 3-573A62.
Filed February 4, 1975.
1. PROCEDURE — Where Motion to Dismiss of One Party Defendant Sustained — Lack of Standing of Other Party Defendant to Claim Error. In an action by a concrete supplier against a contractor and a franchiser for the price of concrete furnished for construction of pole buildings, where the trial court sustained the franchisor's motion to dismiss and held against the contractor, the contractor lacked standing to claim that the trial court's action to sustain franchisor's motion to dismiss was error where the contractor filed no cross complaint asserting any claim against the franchisor for contribution or indemnification and evidence admitted at trial disclosed no such right. p. 156.
2. COMMERCIAL LAW — Account Stated — Agreement of Parties Inferred. — While an account stated imports an agreement that the items of account and the balance struck are correct, agreement may be inferred from delivery of the statement coupled with the recipient's failure to make any objection thereto within a reasonable time. p. 156.
3. APPEAL — Evidence of Billing — Conflicting Evidence. — Where contractor contended there was no evidence to support a finding that it was billed for an item before a certain date, and pointed to a statement which was mailed to franchisor but not contractor, such evidence merely conflicted with other testimony that the bill was sent. Thus the question became one of weighing the evidence, which the Court of Appeals could not do. p. 157.
4. APPEAL — Evidence of Guaranty of Payment — Conflicting Evidence. — Where testimony of a witness for the contractor which alleged that there was a guaranty of payment to the concrete supplier for only one particular project, was contradicted by three witnesses for the supplier, the assignment of error called for a reweighing of evidence, which the Court of Appeals could not do. p. 157.
5. APPEAL — Failure to Include Issue in Motion to Correct Errors — Waiver — TR. 59(G). — A contention that a guaranty agreement was in violation of the Statute of Frauds was waived where such assignment was not included in the motion to correct errors as required by TR. 59(G). p. 157.
In an action for damages as a result of nonpayment of concrete furnished for the construction of pole buildings, appellant building contractor appeals the award of damages to the concrete supplier.
From the Elkhart Circuit Court, Aldo J. Simpson, Judge.
Affirmed by the Third District.
Robert E. Peterson, Douglas B. Morton, of Rochester, for appellant.
John D. Ulmer, Yoder, Ainlay, Ulmer and Buckingham, of Goshen, for appellee Valley Concrete; Roger W. Hultquist, Snouffer, Haller and Colvin, of Fort Wayne, for appellee Smiley Buildings, Inc.
This was a suit upon an account related to the construction of pole buildings. The plaintiff, Valley Concrete (the supplier) was a ready-mix company that furnished concrete used on the jobs. The defendant, Smiley Buildings, Inc. (the franchisor) was franchisor for the pole buildings and furnished the general materials used in their construction. The appellant-defendant, Burns Construction, Inc. (the contractor) held a franchise from Smiley Buildings Inc., sold the jobs, put up the buildings and collected from the customers. However, a fourth company (the subcontractor), not a party to the action, actually performed the necessary concrete work.
Originally, the supplier dealt with the subcontractor. When it experienced trouble securing payment, it indicated no more concrete would be furnished upon the basis of the subcontractor's credit. A Mr. Kimmel, an employee of the contractor, then indicated that the contractor and franchisor would be responsible for payment. When bills for subsequent jobs went unpaid, the supplier brought this suit naming the contractor and the franchisor as defendants.
Trial was to the court. At the conclusion of the supplier's evidence, the court sustained the franchisor's motion to dismiss pursuant to Indiana Rules of Procedure, Trial Rule 41 (B). At the conclusion of all the evidence, the court found in favor of the supplier and against the contractor and entered judgment for $6,830.85.
This appeal follows the overruling of the contractor's motion to correct errors.
The contractor asserts the court erroneously sustained the franchisor's motion at the conclusion of plaintiff's evidence. This assignment fails to present a reviewable error. No motion to correct errors or cross appeal was filed by the supplier contesting the dismissal. The case was tried upon the supplier's complaint and the answers thereto. The contractor filed no cross complaint asserting any claim against the franchisor for contribution or indemnification, and the evidence admitted at trial disclosed no such right.
Accordingly, any error in the court's ruling is harmless as to the contractor because it does not affect the contractor's rights. In other words, the contractor lacks standing to [1] claim the error. Rule TR 61. See, Continental Life Insurance Co. v. Archibald (1928), 87 Ind. App. 597, 162 N.E. 66; Weiand v. Russow (1963), 134 Ind. App. 625, 190 N.E.2d 567; Ragland v. Swindell Dressler Corp. (W.D. Pa., 1960), 186 F. Supp. 769.
It is next asserted that there was error in the award of interest. The contractor first argues that the debt could not have been an account stated because there was no agreement [2] on the sum. There was, however, evidence that monthly statements were sent and no objection was lodged until the claim was referred to counsel several months later. While it is true that an account stated imports an agreement that the items of account and the balance struck are correct, agreement may be inferred from delivery of the statement coupled with the recipient's failure to make any objection thereto within a reasonable time. First Nat. Bank v. Peck (1913), 180 Ind. 649, 103 N.E. 643; Walsh v. Farm Bureau Co-op (1969), 146 Ind. App. 42, 252 N.E.2d 609.
The contractor also urges there was no evidence to support a finding that one item for $871.38 was ever billed to it before June 22, 1971. In support of this assertion, counsel [3, 4] points to a March 31, 1971 statement in that amount which the supplier's treasurer admitted was mailed to the franchisor but not to the contractor. From this, counsel urges that the contractor was unaware of the $871.38 bill until it admittedly received another statement on June 22. The most that can be said for this testimony is that it conflicts with other testimony that bills were sent monthly and the evidence of the contractor's bookkeeper showing a reply letter sent prior to June 22 which apparently contemplated the $871.38 item along with the other items. Accordingly, the question becomes one of weighing the evidence and determining credibility. This we may not do.
Finally, the contractor urges that the decision is not supported by the evidence.
It is first assigned that the evidence showed a guaranty of payment for only one particular project. While the witness Kimmel so testified, his evidence was contradicted by three of the supplier's witnesses. Again the assignment merely urges that we reweigh the evidence.
It is also urged that the guaranty agreement was in violation of the Statute of Frauds. While, in fact, the evidence at trial was sufficient to avoid the requirement of a contract in [5] writing, we need not particularize for the asserted error has not been properly presented for review, since the assignment was not included in the motion to correct errors as required by Rule TR 59(G).
It may also be noted that no affirmative defense asserting the statute was made as required by Rule TR. 8(C), nor was objection made to the testimony regarding the "agreement".
The contractor has failed to demonstrate reversible error. The judgment is affirmed.
Staton, P.J. and Hoffman, J., concur.
NOTE. — Reported at 322 N.E.2d 404.