Abelman v. Haehnel

Decision Date26 February 1914
Docket Number8,546
Citation103 N.E. 869,57 Ind.App. 15
CourtIndiana Appellate Court

Rehearing denied May 26, 1914. Transfer denied October 8 1914.

From Porter Superior Court; James F. Gallaher, Judge.

Action by Samuel Abelman against Otto Haehnel, Administrator of the estate of Michael Guenther, deceased. From a judgment for defendant, the plaintiff appeals.


John H Gillett, W. J. Whinery and Edward Schottler, for appellant.

Grant Crumpacker, William Daly, George B. Sheerer, E. D. Crumpacker and Owen Crumpacker, for appellee.

FELT, J. Lairy, C. J., Ibach, Caldwell, Hottel and Shea, JJ., concur.



Appellant, Samuel Abelman, filed a claim against the estate of Michael Guenther, deceased, on seven promissory notes, each dated November 2, 1907, bearing interest payable semiannually, and alleged to have been executed by the decedent to appellant. One of said notes called for $ 200 with five per cent interest from date and attorneys' fees, due in one year from date at the First National Bank of Hammond, Indiana. All of the other notes were payable at the office of the Lake County Savings and Trust Company of Hammond, Indiana, with attorneys' fees, as follows: Three, each calling for $ 200 with five per cent interest from date; one for $ 250 due in two years with five per cent interest from date; one for $ 300 due in two years with interest at six per cent from date, and one for $ 2,500 due in one year with interest at five per cent from date, and all aggregating $ 3,850 in principal, and accrued interest in addition thereto.

Appellee, the administrator of said estate, filed an answer in five paragraphs the first of which is a general denial. The second denies the execution of the notes. The third paragraph alleges that the notes were procured by fraud. The gist of the charge is that decedent was old, feeble in body and unsound in mind; that appellant sold a farm for him on a commission contract and was paid his commission in full; that under the pretense that the title conveyed by decedent was defective and that it was necessary for him to execute certain papers to perfect the title, appellant induced him to sign the notes in suit not knowing what they were and in the belief that they were papers relating to the title to the real estate sold by him. The fourth paragraph of answer is also an answer of fraud similar in its general averments to the third, except it charges in substance that decedent was a German, unable to read or write the English language and ignorant of the ways of doing business with banks; that he loaned appellant $ 200 and assigned to him a certificate of deposit for that amount; that appellant induced him to execute the notes in suit under the belief that he was only executing the necessary papers to enable appellant to obtain the $ 200 from the bank. The third and fourth paragraphs of answer each contained the formal and necessary averments to constitute a good answer of fraud in the procurement of the notes. The fifth paragraph alleges that the notes in suit, and each of them, were executed without any consideration.

The appellant filed a reply in general denial to the second, third, fourth and fifth paragraphs of answer. He also filed a verified second paragraph of special reply to the third paragraph of answer in which he alleged that he did not execute the contract therein mentioned relating to the sale of the farm of decedent.

The cause was submitted to a jury which returned a general verdict for appellee, also answers to certain interrogatories. The appellant's motion for a new trial was overruled and judgment rendered on the verdict from which this appeal was taken.

The only error assigned is the overruling of appellant's motion for a new trial. A new trial was asked on the grounds that the verdict of the jury is not sustained by sufficient evidence; that it is contrary to law; that the verdict of the jury in answer to interrogatories is not sustained by sufficient evidence; that the court erred in giving, and in refusing, certain instructions; that the court erred in excluding certain evidence; that the jury was guilty of misconduct and acted through prejudice and ill will.

While there was no motion for judgment on the answers of the jury to the interrogatories, the answers become important in considering some of the questions presented, and for that reason we state their substance as follows: that decedent, Michael Guenther, on or about November 2, 1909, did not sign and deliver the notes sued on to Samuel Abelman; that seventy-five acres of real estate belonging to decedent, were conveyed to John Gavit on or about September 14, 1907, at the request of said Abelman; that the notes in suit were not given in consideration of any interest of said Abelman in the land so conveyed as aforesaid; that the notes have not been paid; that there is nothing due on said notes; that decedent did not "sign each and all of the notes sued on" and did not sign the note for $ 2,500; that said Abelman was on September 14, 1907, paid in cash a commission of $ 375 for selling said land of decedent and the sum so paid was in full of all indebtedness to said Abelman on account of the sale of said real estate; that the land was sold under an agreement that decedent should pay claimant a commission of five per cent; that the real estate was sold for $ 7,500 of which amount $ 3,500 was paid in cash and the balance was secured by a mortgage on the real estate sold; that on September 14, 1907, decedent deposited in the bank at Hammond the sum of $ 3,105; that the notes in suit do not represent any bona fide indebtedness due from decedent's estate to the claimant and were not based upon any consideration. The jury was also asked if at the time of the execution of the notes, the decedent was a person of sound mind, but they made no answer to the question. By these answers the jury found that there was no consideration whatever for the notes in suit; that decedent did not owe appellant anything and did not execute the notes.

Appellee's second paragraph of answer is a non est factum, and having been filed by an administrator is good without verification. § 370 Burns 1914, § 364 R. S. 1881. The fifth paragraph is a plea of no consideration.

A promissory note given for the purpose of making a donation or gift to the payee, if based upon no other consideration, can not be enforced by the payee, against the maker or his estate. The note is only an executory obligation, a promise to give, but not an executed gift until the note is actually paid. West v. Cavins (1881), 74 Ind. 265, 274; Johnston v. Griest (1882), 85 Ind. 503; Gammon Theological Seminary v. Robbins (1891), 128 Ind. 85, 92, 27 N.E. 341, 12 L.R.A. 506; McCullough v. Martin (1894), 12 Ind.App. 165, 168, 39 N.E. 905; Roney v. Dunleary (1906), 39 Ind.App. 108, 111, 79 N.E. 398; Bundrant v. Boyce (1911), 47 Ind.App. 253, 260, 91 N.E. 968, 92 N.E. 126; 20 Cyc. 1211; I Daniel, Negotiable Inst. (6th ed.) § 180. If a note is given without any consideration it can not be regarded as an executed gift because made payable at a bank. Mader v. Cool (1895), 14 Ind.App. 299, 302, 42 N.E. 945, 56 Am. St. 304.

In a civil case it is sufficient that the evidence supplies reasonable grounds for inferring facts essential to a recovery or a defense. Where the evidence affords such reasonable grounds for inferring facts and the facts have been found by the jury, on appeal, such finding will not be disturbed for insufficiency of evidence. Riehl v. Evansville Foundry Assn. (1885), 104 Ind. 70, 74, 3 N.E. 633; Rauh v. Waterman (1902), 29 Ind.App. 344, 346, 61 N.E. 743, 63 N.E. 42; Lake Erie, etc., R. Co. v. Brafford (1896), 15 Ind.App. 655, 665, 43 N.E. 882; Warner v. Marshall (1906), 166 Ind. 88, 117, 75 N.E. 582.

Frank P. and Carrie Hufty each testified that after the death of the decedent, appellant told them that decedent liked him so well that he made him a present of the notes in suit. This evidence was undisputed and sufficient to warrant the inference that the notes were executed without any consideration as alleged in the fifth paragraph of answer. By the answers to the interrogatories we know that the jury did so find. There is some evidence to support the finding and for the purposes of this appeal such finding of the jury is conclusive upon the issue presented by the answer of no consideration.

There were three witnesses who testified that in their opinions the signatures to the notes were in the handwriting of the decedent, but they did not testify on the question of delivery. There were two witnesses, girls by the name of Krieger, who testified to seeing certain notes signed by the decedent at his home in the fall of 1907, and delivered to appellant. The notes identified by these witnesses bear date of November 2, 1907. The evidence shows that appellant on that date gave to the decedent his note for $ 200 for borrowed money, and that this transaction occurred at the home of decedent. A daughter and grandson of decedent testified that they were present when appellant gave the note for $ 200 to decedent and that the Krieger girls who claimed to have seen the notes sued upon executed, were not present. Benjamin Lohse, the grandson, testified that he wrote the note given by appellant to his grandfather, in his grandfather's house on the afternoon of November 2, 1907, and that no one was there that day but his grandfather, grandmother, his mother, Mr. Abelman and himself. The evidence of several witnesses also tends to show that after the alleged execution of the notes in suit, Michael Guenther stated that he was not indebted to any one.

George B. Sheerer, an attorney, testified that he...

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