Smith v. Miami Lumber Co.

129 N.E. 414, 74 Ind. App. 621, 1921 Ind. App. LEXIS 140

• Court: Indiana Court of Appeals
• Decided: January 12, 1921
• Docket: No. 10,607
• Status: Published

Opinion

McMahan, J.

Complaint by appellee to foreclose a mechanic’s lien. Judgment and decree in favor of appellee, from which appellant appeals, and insists that the decision is not sustained by sufficient evidence. The first contention is that the evidence shows that the material and labor were furnished under a written contract wherein it was agreed that appellee should accept a certain note for $1,200 as part payment, while the complaint is on an oral contract.

Appellant is correct in asserting that the complaint is on an oral contract, but the evidence is sufficient to show that the written contract under which appellant contends that the house was to be built had been abandoned by the parties and an oral contract entered into in which the $1,200 note was eliminated. This being true, the evidence is sufficient to sustain the decision, and it is not contrary to law. ' Appellant discusses other questions relative to the written contract and the $1,200 note, but, since the evidence is sufficient to sustain a finding that the written contract had been abandoned, we need not enter into a discussion of the rights of the parties under the written contract.

Judgment affirmed.