Opinion
No. 12,207.
Filed October 29, 1925.
From Marion Superior Court (A 22,493); Theophilus J. Moll, Judge.
Action by the I.J. Cooper Rubber Company against N.J. Lux and others. From a judgment for plaintiff, the defendants appeal. Affirmed. By the court in banc.
Edward W. Little and Earl W. Little, for appellants.
Ketcham, McTurnan Higgins, for appellee.
Action by appellee to recover damages for the alleged breach of a contract in the form of a lease on certain real estate owned by appellee. Appellants by cross-complaint attempted to recover damages for negligence in creating gas fumes and smoke on the premises adjoining that occupied by appellants, and for breach of contract by the pollution of the air around the room occupied by appellants thereby causing it to become uninhabitable.
An answer in denial and a second paragraph of answer and cross-complaint were filed by appellants and appellee filed an answer in denial to the cross-complaint.
There was a trial by jury which returned a verdict for appellee in the sum of $419.35, together with answers to the interrogatories submitted by the court.
Error relied upon for reversal is that the court erred in overruling appellants' motion for a new trial, under which appellants first contend that the court erred in overruling their motion for a peremptory instruction, for the reason that appellee had failed to prove that appellants were partners. But in this, they are wholly mistaken. There was abundant evidence from which the jury might reasonably infer that a partnership relation existed between appellants.
It does not appear that the instructions were in any way made a part of the record, but, if it be conceded that they were, instructions 13 and 15 were correct statements of the law as applied to the lease.
The judgment is affirmed.