Baughman v. Lowe

• Decision Date: 07 January 1908
• Docket Number: 6,017
• Citation: Baughman v. Lowe, 41 Ind.App. 1, 83 N.E. 255 (Ind. App. 1908)
• Parties: BAUGHMAN ET AL. v. LOWE
• Court: Indiana Appellate Court

83 N.E. 255

41 Ind.App. 1

BAUGHMAN ET AL. v. LOWE

No. 6,017

Court of Appeals of Indiana

January 7, 1908

From Newton Circuit Court; Charles W. Hanley, Judge.

Action by John C. Lowe against Ulysses M. Baughman and another. From a judgment for plaintiff, defendants appeal.

Reversed.

Foltz & Spitler, for appellants.

Emory B. Sellers, for appellee.

OPINION

ROBY, C. J.

Appellee's complaint was in three paragraphs, the first a common count for money had and received, the second and third setting out the details of the transaction out of which the alleged liability arose. Appellants answered in five paragraphs. The third set up payment by check. A demurrer for want of facts was sustained to it, but the facts therein stated were provable under other paragraphs, and there was no reversible error in the ruling.

It is claimed that certain instructions given by the court were inconsistent with each other. If they were, it was because part of them were more favorable to appellants than they should have been, and such fact, if granted, furnishes them no basis for complaint.

The jury returned a general verdict against appellants for $ 673.66, and judgment was rendered thereon. The court overruled appellants' motion for a new trial and such ruling is assigned as error.

The facts upon which the ultimate rights of the parties depend are as follows: Appellee owned a real estate mortgage and employed the appellants, who are attorneys, to foreclose and collect it. Such steps were taken by them as resulted in the payment of the full amount to them on April 15, 1904. They immediately notified appellee of the fact, and deposited the money to the credit of appellant Williams in a bank which was of good credit and repute. On April 16, which was Saturday, appellee came to their law offices, and a computation of the amount coming to him was made. As the conference was concluded Baughman said to his coappellant "Mr. Williams, Mr. Lowe wants to take his money home and you had better step over to the bank so he can take the currency home with him." Williams said: "All right," and got up to go, and Mr. Lowe said: "Just wait a minute, there is another matter, just come back," and thereupon entered upon a discussion which resulted in an agreement to pay appellee $ 10 out of the attorneys' fee allowed by the court in said cause. The fee was in part for an attorney in another county through whom the business had come to appellants. The appellee desired to collect a debt owing him from this attorney, and the concession was made to him as shown upon the face of the check subsequently given. When this matter was concluded to appellee's satisfaction, Baughman said: "John, you have waited a little too long. The curtain is down over there [referring to the bank which was across the street from the law office], you cannot get any money to-night." Williams then said: "We will just send you a draft for this Monday morning, or I can give you my check." Lowe said: "That is all right, you can send me a draft, it will be all right, or you can just give me a check. I had just as lief have the check as the money. I have a bank account at Monticello, and it will not cost me anything for exchange. I had just as soon have the check as the money." Thereupon a check was executed in terms as follows:

"Rensselaer, Indiana, April 16, 1904. No. 6.

A. McCoy & Co.'s Bank.

Pay to John C. Lowe or order $ 629.24

Six hundred twenty-nine and 24-100 Dollars,

In full for Lowe-West settlement and $ 10 on Graves's account to Lowe."

George A. Williams.

This check was accepted by appellee, who on the next day delivered it to the cashier of the Monticello bank referred to. The McCoy & Co.'s Bank did not open after the time said check was given, being insolvent, and is in liquidation.

The money collected by appellants belonged to appellee. They held it as trustees for him. The rules governing their action and liability in regard to it are the same that apply to other trustees. While the fund is kept intact as a trust fund, the trustee is relieved from liability if he exercises the care of a prudent and diligent man. Had the fund in question been deposited in the names of appellants as attorneys for appellee, there would be no reasonable ground for asserting individual liability on their part. It was not so deposited. The deposit was made to the personal credit of a member of the firm, and it is settled that under such circumstances the beneficiary may treat the fund as the property of the trustee and hold him personally therefor, or he may elect to claim the fund. Naltner v. Dolan (1886), 108 Ind. 500, 505, 58 Am. Rep. 61, 8 N.E. 289; Allen v. Davis (1897), 17 Ind.App. 338, 344, 45 N.E. 798.

Appellants offered to prove that when the deposit was made the bank officer was told whose money it was. Such proof was rightly rejected. Had they desired to deposit as attorneys or trustees for appellee, or to his...