The judgment appealed from was entered on a verdict for $570 in favor of appellees upon their complaint in two paragraphs to recover damages for breach of a building contract. A 1-3. motion for new trial was overruled. The only specification thereof relied upon in appellant's propositions and authorities is error in giving certain instructions tendered by appellees. The cause was tried after the 1940 revision of the rules of this court and no attempt was made to comply with Rule 1-7 requiring specific written objections to instructions. These alleged errors therefore were waived. The other assignments relied upon concern rulings with respect *Page 311 to the second paragraph of complaint. The only difference between the first and second paragraph was that the first charged failure to construct the building in accordance with the contract and the second characterized such failure as negligent and careless. The instructions disclose that the cause was tried on the theory of a breach of contract. There is no suggestion therein of a tort theory. The appellant could not have been harmed by the refusal of the court to require appellees to make the second paragraph more specific or to elect as to their theory nor was it harmful error to refuse to strike the second paragraph from the files. Appellants have no proposition questioning the sufficiency of either paragraph of the complaint on demurrer and no question as to the sufficiency of the evidence to sustain the verdict. Appellees suggest the assessment of a penalty, citing Anspach v. Byer (1928), 87 Ind. App. 672, 162 N.E. 414. There is not the slightest merit in the appeal and we think the penalty should be assessed.
The judgment is affirmed with ten (10%) per cent penalty and the cause is remanded for execution in accordance with § 2-3233, Burns' 1933, § 508, Baldwin's 1934.
NOTE. — Reported in 47 N.E.2d 609.