Blair-Baker Horse Company v. First National Bank of Columbus

Decision Date05 January 1905
Docket Number20,402
Citation72 N.E. 1027,164 Ind. 77
PartiesBlair-Baker Horse Company v. First National Bank of Columbus
CourtIndiana Supreme Court

From Hancock Circuit Court; Edward W. Felt, Judge.

Action by the First National Bank of Columbus, Indiana, against the Blair-Baker Horse Company. From a judgment for plaintiff defendant appeals. Transferred from the Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

L. P Harlan, Ephraim Marsh and William W. Cook, for appellant.

Henry Warrum and Charles S. Baker, for appellee.

OPINION

Jordan, J.

Appellee a national bank engaged in doing a general banking business in the city of Columbus, Indiana, prosecuted this action to recover money alleged to have been obtained from it by appellant. The latter is an incorporated company engaged in the business of buying and selling horses, etc., at the city of Indianapolis.

In substance, the first paragraph of the complaint alleges that the defendant is indebted to the plaintiff in the sum of $ 1,500, for money had and received by it for the use and benefit of plaintiff. By the second paragraph it is alleged that the defendant is indebted to the plaintiff in the sum of $ 1,500 for money paid by the plaintiff for the use of the defendant at its request. The third paragraph charges, in substance, that the plaintiff is a duly authorized national bank; that the defendant was engaged in the business of buying and shipping horses and mules at Columbus, Indiana; that it carried on its said business by and through one Charles Decker, as its agent; that said Decker paid for stock purchased by him for defendant by making drafts upon the latter and its predecessors, Blair, Baker & Walter, "in favor of plaintiff, and by depositing the amounts of such drafts in the bank of plaintiff at Columbus, Indiana, and by checking against such deposits to the person from whom he purchased the live stock; that said defendant and its predecessors aforesaid well knew that said Decker was holding himself out as the buyer or purchasing agent of the defendant and said Blair, Baker & Walter, and that plaintiff gave credit to said Decker on account of the credit of the defendant, and, by reason of said agency; that said business relations continued for a period of about five years, and the money so furnished by plaintiff and paid out by said Decker as aforesaid amounted to $ 125,000; that on November 23, 1901, said Decker drew his draft as aforesaid for $ 1,000, and placed the same to his credit as aforesaid, and checked against the amount for mules and horses purchased for the defendant to the amount of $ 1,181.83; that said draft was duly presented to defendant on November 25, 1901, and the same was dishonored, and payment therefor refused; that defendant accepted the stock so purchased and paid for as aforesaid by the money so advanced on said draft and overdraft aforesaid, and accepted the benefits of the use made by said Decker of said money; that plaintiff demanded payment of said amounts from the defendant, which was refused, and the same is due and unpaid."

Answer, general denial. On the issues joined, the cause was submitted to a jury for trial, and a general verdict was returned in favor of appellee for the sum of $ 1,150.16. Over appellant's motion for a new trial, assigning various reasons therefor, judgment was rendered in favor of appellee for the amount assessed by the jury.

Numerous alleged errors are discussed by appellant, and relied upon for a reversal, among which are the following: (1) Erroneous ruling of the court in admitting certain evidence in favor of appellee; (2) error in giving certain instructions to the jury.

The evidence in the cause shows that the predecessor of appellant was the firm of Blair, Baker & Walter. This firm was engaged in the business of buying and selling horses and mules at the stock-yards in the city of Indianapolis. On March 12, 1901, the firm was incorporated under the name of the Blair-Baker Horse Company, and continued to do a general commission business at said stock-yards. The evidence discloses that, as a general rule, appellant's method of doing business, both before and after its incorporation, was to receive horses and mules consigned to it by horse buyers and shippers. The horses and mules so consigned would be sold by the company for the consignor, and after its commission--being a certain amount per head--and the expenses of yardage, feeding and other expenses were deducted from the proceeds of the sales, the remainder would be entered on the company's books to the credit of the consignor or shipper.

The cashier of appellee bank testified that in March, 1897, Mr. Blair, of said firm of Blair, Baker & Walter, came to the bank at Columbus, Indiana, and was introduced to him by Mr. Lucas, the president. The witness further testified as follows: "He [Blair] asked that I would arrange to cash drafts to be made by Charles Decker; that he wanted to establish a buyer there in the market; that he would honor the checks or drafts drawn by Mr. Decker on them. He made no limit either as to the amount or time, but he would want it so Mr. Decker could draw money on his own check." This witness also testified that at other times, in the bank, after the occasion in question, Blair told him that "Decker was all right, that he was their buyer, and that they would furnish him the funds." The witness further testified that, in pursuance of the arrangement made as above mentioned, the bank from time to time cashed drafts drawn by Charles Decker on the firm of Blair, Baker & Walter, and so continued to do after the incorporation of the company, until November 23, 1901.

It appears that when Decker would draw a draft on the company the bank would give him credit for the same as a deposit for the amount thereof. Against this deposit Decker would draw checks in payment for horses purchased by him, and for expenses or debts incurred by him other than for the purchase of horses or mules. All of these checks were honored and paid by the bank, and at times the bank permitted him to overdraw his deposit. All of the drafts drawn by Decker through the bank on the Blair-Baker Horse Company were paid by the latter until November 23, 1901. The draft of that date it failed and refused to pay, assigning as a reason therefor at the trial that Decker had become largely indebted to the company. The nonpayment by appellant of this latter draft led up to the commencement of this action. Blair, on the witness-stand, denied that he had made any arrangement with the bank to pay drafts drawn by Decker on his company, and also denied that the conversation between him and the cashier, as testified to by the latter, at any time or place occurred. In fact, Blair, together with others who were officials in appellant company, gave evidence in denial of the alleged fact that Decker in any...

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