Barry, M. D., Saw & Supply Co. v. Campbell

41 N.E. 955, 13 Ind. App. 455, 1895 Ind. App. LEXIS 269

• Court: Indiana Court of Appeals
• Decided: November 5, 1895
• Docket: No. 1,678
• Status: Published

Opinion

Lotz, J.

The appellant sued the appellees on a promissory note. The appellees filed an answer in three paragraphs: (1) The general denial; (2) breach of warranty; (3) counterclaim. The appellees filed a reply in denial of the second and third paragraphs. The cause was submitted to the court for trial, which, at the request of appellant, made a special finding of the facts and stated conclusions of law and rendered judgment in favor of the appellees that the appellants take nothing by their action.

An assignment of error calls in question the action of the court in overruling appellant’s demurrer to the second and third paragraphs of answer. Appellant’s demurrer is so defective in form as to present no question as to the sufficiency of either paragraph. Pine Civil Tp. v. Huber Mfg. Co., 83 Ind. 121. It is doubtful whether or not the second paragraph is sufficient had it been properly tested.

Another assignment of error calls in question the action of the court in overruling appellant’s exception to the conclusions of law.

The conclusions of law in this case contain certain statements which are -properly facts, and are not conclusions of law. It is settled that a fact cast among the. conclusions of law cannot he considered for any purpose. The finding shows that the saw for which the note was given was worthless. No return was therefore necessary.

Judgment affirmed.