Born v. Union Elevator Company

• Decision Date: 13 March 1918
• Docket Number: 9,557
• Parties: BORN v. UNION ELEVATOR COMPANY ET AL
• Court: Indiana Appellate Court

118 N.E. 973

67 Ind.App. 97

BORN v. UNION ELEVATOR COMPANY ET AL

No. 9,557

Court of Appeals of Indiana

March 13, 1918

From Tippecanoe Superior Court; Burton B. Berry, Special Judge.

Action by the Union Elevator Company and others against Edward Born.

From a judgment for plaintiffs, the defendant appeals.

Affirmed conditionally.

A. B Cronk and L. E. Ritchey, for appellant.

Charles A. Burnett and Wood & Evans, for appellees.

OPINION

CALDWELL, J.

Appellee Union Elevator Company brought this action against appellant filing a complaint in six paragraphs. Answers, replies and cross-complaints were filed, under which the other appellees, Charles Haywood and John T. Detchon, became parties to the proceeding. As no question is properly presented respecting the sufficiency of any of the pleadings, we do not find it necessary to set out even their substance. A trial resulted in a finding in favor of the Union Elevator Company and against appellant in the sum of $ 389 principal and interest, and $ 200 as attorney fees, a total of $ 589, on which judgment was rendered. The record presents but two controlling questions: First, the sufficiency of the evidence to sustain the finding; and, second, whether appellee was entitled to recover attorney fees.

There was evidence within the issues to the following effect: Prior to July 3, 1912, appellees Haywood and Detchon, as partners, under the name of Union Elevator Company, were engaged in the business of buying and selling grain and other products at New Richmond, Montgomery county. On that day they, with others, organized a corporation, preserving and continuing such business name. This corporation, Union Elevator Company, by proper transfers and assignments, succeeded to all the rights and liabilities of the partnership, and since that day has been conducting the business.

As the corporation is the successor in interest of the partnership, in our further statement of the case, we shall refer to transactions had with either the former or the latter as had with the Union Elevator Company.

On September 1, 1910, appellant and the Union Elevator Company entered into a written contract by which the former sold and agreed to deliver to the latter, on or before February 1, 1911, 4,000 bushels of good merchantable corn, to be paid for at the market price at the time of delivery, less any advancements made. Inscribed on the contract was a receipt signed by appellant as follows:

"Received this day on above contract $ 1,616.00, on which I agree to pay 7 per cent. interest until grain is delivered, without any relief whatever from valuation or appraisement laws, and attorney's fees. Due Feb. 1, 1911."

On September 19, September 21, October 3 and November 14, 1910, the parties entered into other contracts in terms similar to the one above outlined, by which appellant sold to the company 250, 2,000, 1,500 and 350 bushels of corn respectively, the first lot to be delivered on or before January 1, and the other three lots on or before February 1, 1911. There was inscribed on each of these contracts also a writing in terms as above, signed by appellant, by which he acknowledged that he had received on the involved contract $ 100, $ 784, $ 500 and $ 150 respectively. It follows that, at the close of the preliminary arrangements between the parties, appellant had sold for future delivery at market prices 8,100 bushels of corn, on which he had been advanced $ 3,150. Appellant failed to deliver any corn under the contract or otherwise on or prior to February 1, 1911. Thereafter, however, he did deliver to the company large quantities of corn from time to time, aggregating much more than 8,100 bushels, and in addition delivered a large quantity of oats and other articles and products, and from time to time paid to the company money by check. The company likewise from time to time advanced to appellant large sums of money by check, and in addition sold and delivered to him stock food and other articles and products. There is no serious conflict between the parties respecting the quantity of corn and other articles and products sold and delivered, or respecting the amounts of money paid and advanced by either respective party to the other. The controversy is of the following nature: No corn having been delivered on or prior to February 1, 1911, the parties entered into a subsequent verbal agreement, respecting the terms of which the parties do not agree. Appellee offered testimony that sometime after February 1, it was agreed that appellant should proceed to deliver corn under the contracts, with the privilege of storing it for thirty days, with the right to be credited any time within the thirty days at the market price; that he did so deliver corn, and was so credited; that he delivered other corn, oats and other articles and products under an agreement that he should be credited at the market price at the time of delivery, and that he was so credited. Appellant offered testimony that by such subsequent arrangement the written contracts were canceled, and that he delivered corn under an agreement that he should store it as long as he desired, and be credited at the market price at a time elected by him; that subsequently and after all the corn had been delivered, it was agreed that he should be credited at the rate of sixty-four cents per bushel. Under appellee's theory appellant was entitled to be credited for some of the corn at sixty-four cents per bushel, and the balance at lower rates. There is controversy between the parties, also, as to how many pounds of corn should be regarded as a bushel under the agreement made by them. Respecting this phase of the case, it is sufficient to say that allowing interest, the right to which is not controverted, there was substantial evidence tending to establish that there was a balance due appellee company of $ 389, as found by the court. The finding in this respect is therefore binding on this court.

We proceed to the second question: Appellee company predicates its right to recover attorney's fees on the provisions of the receipts above set out and referred to. Those receipts disclose that $ 3,150 had been advanced to appellant on the corn contracts. The latter disclose that appellant obligated himself to deliver 8,100 bushels of corn. Appellee's cause of action proceeds on the theory that the money advanced with interest thereon was to be paid by the delivery of corn. Appellee's first paragraph of complaint is in part to the effect that by reason of such...