Hart v. Nichols , 104 Ind. App. 641 ( 1938 )

This was an action by the appellee against the appellant Charles L. Hart and another. The complaint was in two paragraphs the first of which alleged that the appellee purchased from the "defendant" an automobile, having traded in an old automobile and paid the difference in cash, and that the defendants had failed, neglected and refused to furnish her a title to the automobile so purchased to her damage in the sum of $150.00, for which judgment was prayed. The second paragraph proceeded upon the theory of money had and received by the defendants for the use and benefit of the plaintiff in the amount of $150.00, for which sum judgment was asked. To each paragraph of the complaint each defendant below filed a general denial.

Upon the issues thus tendered the cause was submitted to the court for trial without the intervention of a jury, resulting in a finding and judgment for the appellee in the sum of one hundred thirty-nine ($139.00) dollars. In due time the appellant filed his motion for a new trial which was overruled and this appeal was then prayed. The only error assigned is the ruling on the motion for a new trial. The causes of the motion for a new trial which are urged here are that the finding is not sustained by sufficient evidence, is contrary to law, and error in the amount of the recovery in that it is too large.

The evidence in this case is not entirely clear. Some of it is in conflict. But we think it is ample to show that the appellee, in her said automobile deal parted with property and 1, 2. money equal to or greater in amount than the amount of the judgment and that she received nothing in return. Each of the defendants below contended that they did not own the automobile which she purchased from them and that the said car was owned by a third person. There was ample evidence, however, to sustain the allegations of the complaint Under these circumstances we would not feel at liberty to disturb the finding of the trial court which we think was sustained by at least some competent evidence. There is no showing made that would convince us that the amount of the recovery was too great. No error is shown in the ruling on the motion for a new trial.

Judgment affirmed.