Opinion
No. 17,684.
Filed May 24, 1948.
1. TRIAL — Instructions — Contract Actions. — In action to recover agreed price of popcorn raised by plaintiff and delivered to defendant under a written contract, requested instruction on theory that action was one to recover for breach of contract for failure to accept the popcorn was correctly refused. p. 320.
2. APPEAL — Exclusion of Evidence — Offer to Prove Necessary to Present Question on Appeal. — Where no offer to prove was made on refusal of admission of evidence, no question was reserved for appeal on the ruling. p. 320.
From the Adams Circuit Court; J. Fred Fruchte, Judge.
Action by Charles Dinger against the Confection Cabinet Corporation to recover the agreed price of popcorn sold and delivered to defendant under a written contract. Judgment for plaintiff and defendant appeals.
Affirmed. By the court in banc.
D. Burdette Custer, of Decatur, attorney for appellant.
De Voss Smith, of Decatur, and Ralph W. Probst, of Kendallville, attorneys for appellee.
This action was brought by appellee to recover the agreed price of popcorn raised and delivered to appellant under a written contract. Trial to a jury resulted in verdict and judgment in his favor.
The sole error assigned upon appeal is the overruling of appellant's motion for a new trial which charges, (1) that the verdict is not sustained by sufficient evidence and is contrary to law, (2) that the court erred in refusing a certain instruction, and (3) that the court erred in refusing to admit certain offered testimony.
Under its first assignment appellant contends that appellee's complaint proceeds upon the theory that appellant refused to accept the popcorn and seeks to recover damages for this breach, and that the evidence fails to show that appellant did accept the corn. There is no merit in this contention. The complaint plainly alleges that the popcorn was delivered to and accepted by the appellant and demands recovery of the agreed price. The evidence shows without contradiction that the popcorn was received and accepted by appellant.
The instruction refused by the court proceeded upon the theory that the action was one to recover for breach of contract 1. for failure to accept the popcorn. It was correctly refused.
As to the ruling of the court in refusing to admit evidence offered by appellant, the record discloses that in each instance no offer to prove was made. No question was therefore 2. reserved. Miller v. Coulter (1901), 156 Ind. 290, 59 N.E. 853.
Judgment affirmed.
NOTE. — Reported in 79 N.E.2d 418.