Avery v. Citizens Loan and Trust Company
| Decision Date | 11 March 1932 |
| Docket Number | 14,270 |
| Citation | 180 N.E. 23,94 Ind.App. 161 |
| Parties | AVERY v. CITIZENS LOAN AND TRUST COMPANY, ADMINISTRATOR |
| Court | Indiana Appellate Court |
From Clinton Circuit Court; Brenton A. Devol, Judge.
Claim by Oliver B. Avery against the estate of Albert E. Betts deceased, and the Citizens Loan and Trust Company administrator. From a judgment for defendants, the claimant appealed.
Affirmed.
Harker & Irwin, for appellant.
Thomas M. Ryan, Stroup & Dawson and William Robinson, for appellee.
This was an action by the appellant upon a claim against the estate of Albert E. Betts, deceased, for machinery rental and repairs furnished by appellant under a written contract with A. F. Cohee Company, a copartnership. The amount of the recovery, if any, was stipulated, so that the sole question for determination in the trial court was whether or not the said estate was liable. The claim had been disallowed and transferred to the issue docket for trial under the provisions of § 3161 Burns 1926. Issues were formed upon the implied general denial, The cause was tried before the court without a jury and a finding and judgment entered for the appellee. The appellant filed a motion for a new trial which was overruled and this appeal prayed and perfected. The only error assigned is the ruling on the motion for a new trial. The errors relied upon for reversal relate to the following causes in the motion for a new trial: (1) The decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) error of the court in excluding certain evidence.
The evidence and the record disclose that, during the year 1919, the decedent, together with H. M. Cohee and A. F. Cohee, formed a copartnership under the name of "A. F. Cohee & Company," and that, on April 8, 1920, a certificate was filed in the office of the clerk of the circuit court of Clinton County stating the full name and residence of each of said partners as the persons engaged in such partnership; that the business of such partnership was road construction; that, on September 3, 1925, A. F. Cohee wrote to the Nickel Plate Railroad Company stating the name of the partners to be as above indicated; that, on October 22, 1925, the partnership submitted a bid to said railroad for the doing of the work, upon which the machinery was used, the rental and repairs of which machinery are the subject of the claim sued upon; that said bid was in writing and accepted in writing October 28, 1925 by the railroad company, which written acceptance contained the provisions that work was to be commenced as soon as it could be arranged and that a written contract would be prepared and submitted by the railroad company and that a bond for $ 62,000 should be given by the contractors; that work was immediately started prior to the death of the decedent, using the partnership equipment; that, on November 27, 1925, the decedent died; that, on December 5, 1925, the railroad engineer wrote a letter to the general solicitor of the railroad advising him of the death of the decedent; that said general solicitor on December 18, 1925, wrote the railroad engineer submitting a formal contract and stating: ; that, on December 22, 1925, the railroad engineer wrote A. F. Cohee submitting the formal contract which was dated December 1, 1925, which contract purported to be between "A. F. Cohee and H. M. Cohee copartners doing business as the A. F. Cohee Company" and the railroad company; that February 3, 1926, the equipment lease, under which the claim in the instant case arose, was executed between the appellant and the A. F. Cohee Company, without mentioning the individual members of the partnership, except that the signature is A. F. Cohee Company by A. F. Cohee; that the equipment furnished by the appellant was used in the completion of the contract with the railroad company; that the rental and repairs of said equipment were not paid; that, on December 7, 1925, an affidavit was made by A. F. Cohee, which was filed in No. 3419 Clinton Circuit Court, in the matter of the surviving partnership of A. F. Cohee Company, showing the membership of the copartnership, and asking that the affiant be permitted to administer the affairs of said partnership as surviving partner, and stating that he desired to take an inventory of the assets belonging thereto and cause an appraisment thereof to be made according to law, and that he has selected William A. Irwin as one appraiser, and he asks the clerk to appoint another appraiser; that an inventory and appraisement of the assets of the surviving partnership, made by Addison F. Cohee, and appraised by said William A. Irwin and Rolla W. Hendrix, was sworn to by said appraisers on November 15, 1926, and filed in said surviving partnership; that Addison F. Cohee made oath "that he is one of the surviving partners of the firm of A. F. Cohee Company; that the foregoing inventory or schedule contains a full, true and complete list of all properties, rights, credits, moneys, and effects belonging to said firm and that the interest of said deceased partner in and to said firm was the one-third thereof"; that said inventory and appraisement on its face shows that it was made as of December 31, 1925; that an examination of the said inventory and appraisement fails to disclose that the contract with the railroad company was in any manner treated as an asset or liability of the surviving partnership.
While the inventory and appraisement refer to the assets and liabilities of the surviving partnership as of December 31 1925, a date which is 34 days before the date of the equipment lease sued upon, they were not in fact filed until several months...
To continue reading
Request your trial