Eubanks v. Gulley

182 N.E. 95, 94 Ind. App. 650, 1932 Ind. App. LEXIS 200

• Court: Indiana Court of Appeals
• Decided: July 26, 1932
• Docket: No. 14,354.
• Status: Published

Opinion

Kime, J.

This was an action by appellees to recover upon an alleged parol contract for the sale of tobacco. The appellees attempted to introduce a written contract and upon the court’s rejection the substance thereof was proven orally. The court found for appellees and rendered judgment accordingly. Appellant’s motion for a new trial being overruled, he brings this appeal, assigning that ruling as error. The reasons assigned in the motion for a new trial are: The decision is contrary to law — the decision is not sustained by sufficient evidence, and, error in allowing proof of the contents of a written instrument by parol and the use of such parol testimony to support an allegation in the complaint of a parol contract.

There is no brief on behalf of appellees.

The appellant has shown prima facie reversible error in the introduction of evidence of a written contract by parol, and in the absence of a showing that the written contract was lost, destroyed or unobtainable, the judgment of the Dearborn Circuit Court must be reversed and it is so ordered.