Dissenting Opinion
Jackson, J.— This case comes to us on a petition to transfer from the Appellate Court under Acts 1933, ch. 151, §1, p. 800, being §4-215, Burns’ 1946 Replacement. *164See: Ferris Realty, Inc. v. ABCO Signs, Inc. (1962), 182 N. E. 2d 456, for the opinion of the Appellate Court.
Transfer was denied and from such denial I hereby dissent. This was an appeal from a judgment of the Marion Superior Court, Room 5, in an action for a breach of contract on an alleged guaranty. The trial court held for the plaintiff, appellee herein, and entered judgment against the defendant, appellant herein, in the sum of $1,896.00.
The plaintiff corporation alleged the execution of a written contract with two persons known as Billy Ginn and Wah Lee doing business as the Golden Dragon, by the terms of which the plaintiff corporation agreed to furnish and maintain a certain sign described in said alleged written contract. It is noteworthy that neither Ginn or Lee are parties to the action. The plaintiff alleged that the defendant corporation had induced plaintiff to enter into said contract by the execution of a written guaranty, guaranteeing the performance of the contract, the defendant denied such guaranty and put plaintiff corporation on its proof as to the material allegations of the complaint in respect thereto. In view of the fact that plaintiff’s action herein is predicated on an alleged written contract, a copy of which contract is attached to and made a part of plaintiff’s complaint and designated as Exhibit A thereto, we are attaching hereto a copy of said alleged contract marked Exhibit A.
In view of the questions raised by appellant in his motion for a new trial, assignment of error and petition to transfer, I have examined the record with particular care and am struck by the fact that the alleged contract sued upon was not admitted in evidence. The written contract being the foundation of appellee’s action and not having been admitted in evidence, the judg*165ment was not supported by sufficient evidence and the motion for a new trial should have been granted. Higman v. Hood et al. (1892), 3 Ind. App. 456, 457, 458, 29 N. E. 1141; Potter v. Earnest (1875), 51 Ind. 384.
In addition to the failure of the plaintiff to have the written contract admitted in evidence, plaintiff’s proof is inadequate and entirely insufficient to sustain the judgment for the reason that an examination of the alleged contract discloses even if the contract had been admitted in evidence, the guaranty portion of the alleged contract is totally insufficient to bind appellant for the reason that the same was never executed.
Plaintiff (appellee herein) having the burden of proving all facts material to its cause of action and having failed to establish either the alleged written contract, the very foundation of its action, or the execution of the guaranty clause thereof, we have no alternative but to hold that the action of the court below in failing to sustain the motion for a new trial was reversible error.
The cause should be reversed and remanded to the trial court with instructions to sustain the motion for a new trial.
Note. — Reported in 196 N. E. 2d 893.
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Exhibit “A"
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