Appellee filed in the Marshall Circuit .Court a complaint in one paragraph in which he alleges
Exhibit A, made a part of said complaint, is as follows:
“Bremen, Indiana, April 26th, 1913.
“Moses Brown to David Guyer, Dr.
Oct. 26, 1912. To 728 bushels of onions at 32c................$232.96
April 23,1913. To screening and delivering at Bremen onions bot. of Shiveley.............. 10.00
Total Due........$242.96”
Appellant filed a written motion to separate the complaint into paragraphs for reasons stated therein as follows: “The defendant has a distinct and separate defense to each of the items comprising the account set out in the exhibit, * * * the transactions * * * have no connection, and the defendant is deprived * * * of raising the questions constituting his defense to them separately ***.”'
The appellant filed an answer in general denial and a counterclaim. No evidence was offered upon the counterclaim, and hence the issues tendered by it need not be indicated.
2. It is insisted, however, that it appears upon the face of the complaint here involved that the sale of the goods and merchandise for which appellee sought recovery was for an amount in excess of $50; that such contract of sale was not in writing and that there was no averment that the goods or any part of them had been accepted by appellant, and no averment of any -payment thereon, and hence, that a separate paragraph of complaint based on this item would have been subject to demurrer because it involved a verbal contract for a sale of goods for the price of $50 and more, and was within the statute of frauds, §7469 Burns 1914, §4910 R. S. 1881; that the other item of the exhibit and the averments of the complaint relating thereto made such complaint good as against demurrer, and hence that the ruling on said motion prevented appellant from being able to obtain the advantage of a ruling on a demurrer to such separate cause of action
By such ruling appellant was in no event deprived of any substantial right. He could have filed an affirmative partial answer as to that part of the complaint predicated on the merchandise alleged to have been sold and delivered to him, in which answer he could have set up the facts upon which he relied to bring that part of the indebtedness sued on within the statute of frauds. He could also, and in fact did in this case, tender an instruction which gave him the full benefit of such statute.
3. 4. Appellant’s motion for new trial contains several grounds, but most of them have been waived by a failure to present or refer to them in his “Points and Authorities.” Among those presented is the fourth ground of said motion, which is in the following words: “The damages assessed by the jury are excessive.” This is a proper ground of a motion for new trial in actions based on tort — Conner v. Andrews Land, etc., Co. (1903), 162 Ind. 338, 70 N. E. 376; McKinney v. State, ex rel. (1889), 117 Ind. 26, 19 N. E. 613; City of Indianapolis v. Woessner (1913), 54 Ind. App. 552, 103 N. E. 368— but in actions based on contract, “error, in the assessment of the amount of the recovery” must be presented by substantially following the language of the fifth clause of §585 Burns 1914, §559 R. S. 1881. City of Indianapolis v. Woessner, supra; State Exchange Bank v. Paul (1914), 58 Ind. App. 487, 108 N. E. 532.
5.
The record then shows that argument of counsel was heard, and after hearing instructions, the jury retired, etc., and that “the instructions given on motion of the court, and the instructions tendered by the defendant given and refused, and the instructions tendered by the plaintiff given and refused are filed and made part of the record in this cause and are in these words:” Then follows instructions, each of which is preceded with its number, viz.: “1,” “2,” and “3,” respectively, each number being followed with the words “given on motion of the court.” Immediately following these three instructions appears what purports to be instructions asked by the appellee, signed by his attorneys, and designated as “first” and “second.” There is nothing to indicate whether these instructions were given or refused, except the words “Given” and “Refused” in red ink on the margin of the transcript filed in this court, which indicates that the first was given and the second refused. These are followed by “No. 4 given on motion of- court,” and “No. 5 given on motion of court.” Then follows defendant’s request for in
The record wholly fails to identify the instructions given and refused in the manner required by §561, Burns 1914, supra. The marginal notes required by the rules of this court to be placed on the transcript cannot be made to supply the identification of the instructions given and refused, which the said section of the statute requires to be shown by the record made in the trial court. It is apparent that the record indicated fails to show a compliance with either of the modes provided by statute for the saving of error in the giving or refusal to give instructions. We might add, however, that our examination of the instructions convinces us that those indicated in the manner, supra, as given were applicable to the issues and the evidence, and that they were as favorable to appellant as the law governing the case would warrant.
Finding no reversible error in the record, the judgment below is affirmed.
Note. — Reported in 115 N. E. 947.