
    Richard v. Unique Illustrating Company.
    [No. 12,826.
    Filed April 5, 1927.]
    1. Sales. — Admission in evidence of post card from postmaster notifying, seller that buyer had refused advertising cuts held error. — In action to .recover for "cuts” and reading matter furnished to the defendant for advertising purposes as per contract, admission in evidence of post card from postmaster at buyer’s place of business notifying seller that the buyer had refused cuts sent by mail was error, p. 54.
    2. Damages. — Evidence held insufficient to sustain finding for amount awarded, p. 54.
    From Sullivan Circuit Court; Arthur E. DeBaun, Judge.
    Action by the Unique Illustrating Company against R. Howell Richard. From a judgment for plaintiff, the defendant appeals. Affirmed on condition of remittitur; otherwise reversed. By the court in banc.
    
      Charles D. Hunt, for appellant.
    
      Walter A. Wood, for appellee.
   Thompson, J. —

Appellee brought this action to recover on an account for goods and merchandise sold to appellant.

Appellee alleged in its complaint, in substance, that appellant, by a written order, agreed to accept two^ cuts and reading matter weekly for advertising the Auto Battery, Auto Supply and Vulcanizing business in the city of Sullivan, Indiana, for a term of not less than one year from commencement of service and thereafter until notified in writing to discontinue same, for which appellant agreed.to pay to appellee’s order in New York the sum of two dollars and postage for each cut; that payments were to be made at the end of each calendar month; that appellee began to furnish said service on June 30, 1923, and continued to furnish said service for one year, or to June 21, 1924, a bill of particulars of .which was filed with said complaint and made a part thereof; that there was due appellee from appellant, for such service, the sum of $212.33.

Appellant filed answer in three paragraphs, the first paragraph being a general denial and the second and third paragraphs affirmative. There was a reply in general denial to the second and third paragraphs of appellant’s answer. There was a trial by the court and a finding and judgment for appellee in the sum of $163.37 and costs.

Appellant filed a motion for a new trial, which was overruled, and to which ruling of the court, the appellant excepted.

The error relied upon for reversal is the action of the court in overruling the motion for a new trial.

In the motion for a new trial, appellant alleged: (1) That the assessment of the amount of recovery is too large; (2) that the decision of the court is not sustained by sufficient evidence and is contrary to law; (3) that the court erred in admitting appellee’s exhibit “C” in evidence.

The appellee, over the objection of appellant, was permitted by the court to read in evidence exhibit “C,” which was a post card sent by the postmaster at Sullivan, Indiana, to the appellee in New York, notifying appellee that the cuts sent by appellee, by United States mail, to appellant had been refused by appellant. The admission of this exhibit in evidence was error, but the appellant was called as a witness and testified that eighteen or nineteen of the cuts were sent to the post office at Sullivan and, but for appellant’s testimony, there would be no evidence in the record on which to base a finding for any amount. The nineteen cuts at two dollars each, and the postage •thereon, would make a total amount of $39.52 for which appellant would be liable. There is no competent evidence in this record sufficient to sustain any other damage, and we therefore conclude that the court erred in the assessment of the amount of recovery.

If the appellee will, within thirty days from this date, remit, as of the date of said judgment, the sum of $123.85, and file in the office of the clerk of this court a certificate showing such remittitur, the judgment will be affirmed, otherwise it will be reversed.

Dausman, J., absent.  