Opinion
No. 12,158.
Filed February 24, 1926. Rehearing denied April 20, 1926. Transfer denied December 4, 1929.
1. TRIAL — Instruction — Cautioning Jury to Scrutinize Admissions Closely — Invasion of Province of Jury. — An instruction that testimony as to admissions should be closely scrutinized because the party testifying to them may have misunderstood what was said by the party making the admission, may not have correctly remembered what was said, or may have inaccurately stated what was said, was error, as it invaded the province of the jury. p. 365.
2. APPEAL — Erroneous Instruction — Based on Appellant's Counterclaim — Finding for Appellant on Counterclaim — Reducing Appellee's Recovery — Held Harmless. — An erroneous instruction relative to admissions held harmless error where the testimony to which the instruction was applicable was offered in support of appellant's counterclaim, on which the jury found in appellant's favor. p. 366.
3. EVIDENCE — Testimony as to Amount Due — Invasion of Province of Jury. — The court erred in permitting the plaintiff to testify as to the amount due on the contract sued on, it being the duty of the jury trying the case to determine the amount due, if any. p. 366.
4. APPEAL — Admission of Testimony — As to Amount Due — Harmless Error — When Record Shows Testimony was Disregarded. — Error of the court in permitting the plaintiff to testify as to the amount due him on the contract sued on held harmless where the verdict showed that the testimony was disregarded. p. 366.
5. APPEAL — Weighing Evidence. — Appellate tribunal does not weigh the evidence. p. 367.
From Cass Circuit Court; Paul M. Souder, Judge.
Action by Tilman H. Linard and another against Joseph H. Reitemeier, wherein the defendant filed a counterclaim. From a judgment for the plaintiffs, the defendant appealed. Affirmed. By the court in banc.
Robert C. Hillis, Paul Myers and Kistler, Kistler McHale, for appellant.
Lairy Howell, for appellees.
In this action, brought by appellees against appellant, the allegations of the complaint are, in substance, as follows: That on December 30, 1921, the appellees and appellant entered into a contract in writing by the terms of which the appellees sold to the appellant certain real estate situated in the city of Logansport, at an agreed price, part of such purchase price to be paid $100 a month from and after January 1, 1922; that the appellant owed, at the time of the filing of the suit, the sum of $300 in principal for three monthly payments which the appellees alleged were then due and unpaid; that appellees had performed all conditions in the contract on their part to be performed; that appellees demanded judgment in the sum of $500.
To this complaint, appellant filed answer in four paragraphs: First, general denial; second, payment; third, that the contract declared on was executed wholly without consideration; fourth, an answer stating that the appellant admitted the signing of the contract declared on in the complaint, but that, in so doing, he was deceived and misled by the acts of the appellees in this: That one of the appellees pointed out particular boundaries of the real estate which was the subject of the transaction, and that said appellee pointed out a greater area and different boundaries from the correct area and boundaries of the real estate actually owned by appellees and included within the description given in the contract; that thereby appellant was induced to execute the contract under a mistaken belief as to the true description of the property he was about to purchase; that the property pointed out by appellee was of the value of $9,500 but that the property actually described in the contract was of the value of only $6,000; that appellant had paid on the contract the sum of $6,400, or $400 in excess of the value of the property described in the contract.
There was also a counterclaim filed by appellant in two paragraphs, each paragraph based upon the allegation that appellees pointed out particular boundaries and located a fixed and definite area when offering the property to appellant, and that the contract entered into by the parties described a different and smaller tract and a less valuable tract than the one actually pointed out by the appellees. The first paragraph of the counterclaim is based upon the act of the appellees in wrongfully furnishing an erroneous and mistaken description of the real estate actually owned by the appellees, while the second paragraph is based upon fraud. Appellees filed replies to the answer and counterclaim.
There was a trial by jury and a verdict in favor of appellees in the sum of $300, and also a verdict for appellant in the sum of $200. Thereupon, the jury, having received additional instructions, again retired and returned a verdict for the appellees in the sum of $100. Judgment was rendered upon the verdict. Appellant filed a motion for a new trial, which was overruled, and appellant excepted.
The only valid assignment of error is that the court erred in overruling appellant's motion for a new trial, under which is presented: (a) That the amount of the recovery is too large; (b) the verdict is not sustained by sufficient evidence, and is contrary to law; (c) there was error in the giving of certain instructions; (d) there was error in refusing certain instructions tendered by appellant; (e) the court erred in the admission of certain testimony; (f) the court erred in excluding certain testimony offered by appellant.
Among other instructions given, the appellant complains of instruction No. 7, which reads as follows: "I instruct you that admissions are a class of evidence that should be 1. scrutinized very closely by you for the reason that the party testifying to the admissions, first, may have imperfectly understood what was said by the party making the statement; second, he may not have correctly remembered what was said; third, he may have inaccurately stated what was said."
This instruction is wrong. Davis v. Hardy (1881), 76 Ind. 272; Finch v. Bergins (1883), 89 Ind. 360; Newman v. Hazelrigg (1884), 96 Ind. 73; Lewis v. Christie (1884), 99 Ind. 377; Unruh v. State, ex rel. (1886), 105 Ind. 117, 4 N.E. 453; Shenkenberger v. State (1900), 154 Ind. 630, 57 N.E. 519; Indianapolis St. R. Co. v. Taylor (1905), 164 Ind. 155, 72 N.E. 1045.
It is evident from the verdict returned in this case that the jury found for appellant on his counterclaim on the grounds of fraud, and that the testimony to which the instruction 2. above quoted was applicable was offered in support of appellant's counterclaim, and as the jury found appellant was damaged in the sum of $200, by reducing appellees' claim of $300 to the sum of $100, it is evident that the instruction was harmless.
Appellant complains of other instructions given, but, after considering these, we find no reversible error.
Appellant further contends that the court erred in permitting appellee Tilman Linard to testify to the effect that there was due appellee, on August 3, 1922, on the written 3, 4. contract, $300 on principal and $122.50 interest. This was error, as it was the duty of the jury to determine the amount due, if any, and to whom. Bellefontaine R. Co. v. Hunter, Admr. (1870), 33 Ind. 335, 5 Am. Rep. 201; King v. Enterprise Ins. Co. (1873), 45 Ind. 43; Baker v. Dessauer (1874), 49 Ind. 28; Mays v. Hedges (1881), 79 Ind. 288; Union, etc., Co. v. Moore (1881), 80 Ind. 458; Weik v. Pugh (1884), 92 Ind. 382. This error, however, was harmless, as the verdict returned by the jury shows that the testimony was not regarded, and that appellant was not injured thereby. Pennsylvania Co. v. Frund (1892), 4 Ind. App. 469, 30 N.E. 1116.
This court does not weigh the evidence on appeal. We have 5. carefully considered all the errors assigned, but find no reversible error.
Affirmed.