Bedford Belt Railway Co. v. Burke

• Court: Indiana Appellate Court
• Writing for the Court: GAVIN, J.
• Citation: Bedford Belt Railway Co. v. Burke, 41 N.E. 70, 13 Ind.App. 35 (Ind. App. 1895)
• Decision Date: 13 June 1895
• Docket Number: 1,648
• Parties: BEDFORD BELT RAILWAY CO. v. BURKE

41 N.E. 70

13 Ind.App. 35

BEDFORD BELT RAILWAY CO. v. BURKE

No. 1,648

Court of Appeals of Indiana

June 13, 1895

From the Lawrence Circuit Court.

Judgment affirmed.

F. M Trissal and Matson & Giles, for appellant.

Brooks & Brooks, for appellee.

OPINION

GAVIN J.

The special finding of facts are as follows:

"1. That under a contract with the defendant, plaintiff performed work and furnished material for defendant amounting at the contract price to the sum of $ 906.39.

"2. That the plaintiff executed a receipt to the defendant on the 20th day of April, 1893, for $ 579.50.

"3. And on July 1, 1893, plaintiff executed a receipt to the defendant for the balance of said work, the sum of $ 326.69.

"4. No money was paid to plaintiff by defendant at the time of the execution of either of said receipts.

"5. I find that the first receipt for $ 579.80 was signed in the office of the auditor of said defendant, and was taken by plaintiff and delivered to W. C. Winstandley, secretary and treasurer of said defendant; that said Winstandley was also the president of the Bedford Bank, doing a general banking business in the city of Bedford. Plaintiff had an account with said bank and had to his credit on said 20th day of April, 1893, the sum of $ 451.07; that plaintiff on said 20th day of April, 1893, drew on his check from said bank the sum of $ 332.50, which sum he used in the payment of his laborers, on the work which was represented by this amount in said receipt, but received nothing from defendant on said receipt on said day.

"6. On the next day, April 21, plaintiff was credited on the books of said bank with the amount of said receipt, to-wit, $ 579.50.

"7. Said credit and application was made by said Winstandley and bank without the consent or knowledge of plaintiff.

"8. That after the 20th day of April, 1893, plaintiff drew checks which were paid by said bank as follows: April 29, $ 50.00; April 25, $ 75.00; April 22, $ 10.80; April 25, $ 15.00; April 26, $ 5.00; April 27, $ 29.28; April 29, $ 50.00; May 6, $ 50.00; May 9, $ 25.00; May 16, $ 2.90; May 18, $ 6.95; May 19, $ 5.00; May 25, $ 6.95; May 27, $ 99.11. Plaintiff made a deposit in said bank on May 27, 1893, of $ 100.

"9. The bank book of the plaintiff was not in his possession from January, 1893, to the time of this trial. The same was not balanced until after the transactions herein set out, and his said checks canceled have never been returned to him.

"10. The second receipt for $ 326.89 was executed and delivered to defendant, and defendant afterward, at various times, paid to different parties sums in the aggregate to the amount of said receipt, and on debts for which plaintiff was liable.

"ROBERT W. MIERS, Judge.

"I find as a conclusion of law that there is due plaintiff from the defendant $ 297.18.

"ROBERT W. MIERS, Judge."

The only issue tendered by appellant upon which a defense is based was payment. Keeping in mind the settled rule that the special finding, when reasonably and fairly construed, must disclose all the facts essential to appellant's recovery, either by direct finding or necessary inference (Louisville, etc., R. W. Co. v. Costello, 9 Ind.App. 462, 36 N.E. 299; Becknell v. Hosier, 10 Ind.App. 5, 37 N.E. 580), the facts set forth are insufficient to establish payment of the amount due upon either receipt. There is no direct finding of any amounts paid by the company to appellee nor of any acts done which were intended for and accepted as payment.

Nothing appears to connect the appellant with the credit on appellee's account with the bank. Were it found that the appellant had paid the bank the money or made any arrangement with...