Brown v. The First National Bank of Indianapolis

• Decision Date: 10 October 1888
• Docket Number: 13,483
• Citation: 18 N.E. 56,115 Ind. 572
• Parties: Brown v. The First National Bank of Indianapolis
• Court: Indiana Supreme Court

18 N.E. 56

115 Ind. 572

Brown v. The First National Bank of Indianapolis

No. 13,483

Supreme Court of Indiana

October 10, 1888

From the Montgomery Circuit Court.

The judgment is affirmed, with costs.

T. E Ballard, E. E. Ballard and M. E. Clodfelter, for appellant.

R Hill, R. N. Lamb, T. H. Ristine and H. H. Ristine, for appellee.

OPINION

Howk J.

This was a suit by appellee, as plaintiff, against appellant, Brown, as defendant, in a complaint of two paragraphs, each counting upon a promissory note in the sum of $ 800, each dated November 12th, 1884, executed by appellant, Brown, payable respectively in 90 and 180 days after date to one B. D. Brown, or order, and by him endorsed to appellee. The two notes were precisely alike, except as to the length of time each had to run before maturity. In the first paragraph of complaint the note declared upon was in the words and figures following, to wit:

"$ 800. Indianapolis, Ind., Nov. 12th, 1884.

"Ninety days after date -- promise to pay B. D. Brown, of Indianapolis, Indiana, or order, eight hundred dollars, and five per cent. thereon for attorney's fees, value received, without any relief whatever from valuation or appraisement laws. The drawers and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note, and all defences on the ground of any renewal or extension of the time of its payment that may be given by the holder or holders to them or either of them. Negotiable and payable at the First National Bank of Indianapolis, Ind., with eight per cent. interest until paid.

(Signed) "Geo. D. Brown."

The cause was put at issue and tried by the court, and, at defendant's request, the court made a special finding of the facts and thereon stated its conclusions of law in plaintiff's favor, and, over defendant's exceptions to the conclusions of law, the court rendered judgment accordingly.

Appellant's learned counsel first complain in argument of the alleged error of the court below in its conclusions of law upon its special finding of facts.

The facts found by the court were, substantially, as follows:

On the 12th day of November, 1884, the defendant executed to B. D. Brown the two promissory notes described in the complaint herein.

3. Both of said notes were assigned by B. D. Brown, by endorsement in writing, to the plaintiff before either of them had become due.

4. Both of said notes, at the time of the commencement of this suit, were due and remained wholly unpaid.

5. The amount due on said notes is $ 1,870.05, of which $ 89.05 is plaintiff's attorney's fee.

6. On or about the 1st day of July, 1882, and from that time until about November 1st, 1883, one Richard L. Boyd and one Benjamin D. Brown were partners in business under the firm name of Brown & Boyd. Said Benjamin D. Brown is the payee of the notes sued on herein. Said firm of Brown & Boyd were engaged at Indianapolis, Indiana, in the business of buying and selling grain on commission, and of storing grain. For the purpose of carrying on their said business they leased what was known as the "Western Elevator," at Indianapolis, and this elevator was the principal place used by them in storing grain received by them to be stored.

7. About the 1st day of July, 1882, defendant, George D. Brown, entered into an agreement with said firm of Brown & Boyd, by the terms of which said Brown & Boyd agreed to receive from the defendant wheat, which he should ship to them to be stored, and store the same for him. It was further agreed between said firm and defendant that said Brown & Boyd should advance or loan to the defendant, from time to time, as said wheat should be received, certain sums of money, bearing a certain proportion to the market value of the wheat at the time of its reception. Defendant agreed to pay interest on said loans at the rate of seven per cent. per annum. Brown & Boyd also agreed to pay the freight charges for the shipment of said wheat, to keep it insured and to deliver it to George D. Brown whenever he should call for it. Defendant agreed to pay said loans, freight charges and insurance whenever said wheat should be delivered to him, or sold on his order. He also agreed to pay said Brown & Boyd two cents per bushel per month for the storage of said wheat. Said Brown & Boyd were to have a lien on said wheat, and to hold the same in pledge as security for the payment of said loans, freight, insurance and storage charges. If said loans, freight, insurance and storage charges should at any time amount to within five cents on the bushel of the value of the wheat in store, said Brown & Boyd should have the right to sell said wheat at the market-price, and, after deducting the amount due thereon, pay the remainder, if any, to the defendant, unless defendant should pay to them a sum sufficient to make the margin equal to five cents per bushel on the wheat stored.

8. In pursuance of said agreement, defendant shipped to said Brown & Boyd about thirty thousand bushels of wheat to be stored by them for him.

9. Before the notes in suit were executed, the firm of Brown & Boyd dissolved, and the business was continued by said B. D. Brown with the defendant, under the same agreement.

10. Said notes were executed to said B. D. Brown by defendant for charges which said B. D. Brown claimed were due from defendant, on account of wheat stored for him by the firm of Brown & Boyd, and by the said B. D. Brown.

11. Neither said firm of Brown & Boyd, nor the said B. D. Brown, stored or kept in store any wheat for defendant, either of the wheat shipped to them by him to be stored, or of like kind in grade or quality.

12. In November, 1884, said B. D. Brown failed in business, and, at the time of such failure, he did not have in store for the defendant a single bushel of wheat.

13. No warehouse receipts were ever issued to the defendant.

14. For all the wheat shipped by defendant, warehouse receipts were issued to Brown & Boyd, and, after the dissolution of the partnership, to B. D. Brown, by the Western Elevator Company, which, by the terms of its agreement with Brown & Boyd, and B. D. Brown, kept control of the issuing of warehouse receipts.

15. The assignment of the notes in suit to the plaintiff was based upon a valuable consideration, and, at no time prior to the commencement of this suit, did plaintiff have any knowledge of any defence to said notes, or of any defect or infirmity therein.

16. The firm of Brown & Boyd, and said B. D. Brown, had advanced or loaned to the defendant, in accordance with said agreement, sums of money at different times which, in the aggregate, with the interest thereon, amounted at the time the notes in suit were executed to within a little less than $ 100 of the then market value of the wheat, upon which storage was charged.

17. After the said notes were assigned to the plaintiff, and before the note first maturing became due, the defendant requested of the plaintiff an extension of the time of payment of said first note for a period of three weeks, and promised and agreed with the plaintiff to pay both of said notes at the expiration of the time of such extension, if such extension of the time of payment should be granted. Defendant further agreed that, if such extension of the time of payment were given, he would within three weeks ship to one Philip E. Mitchner, of Indianapolis, a sufficient quantity of wheat to pay both of said notes; and said Mitchner then and there agreed with the plaintiff that, in consideration that the time of payment of said note should be so extended as aforesaid, he, the said Mitchner, would apply the proceeds and value of wheat, which should be so shipped to him by defendant, towards the payment and satisfaction of both said notes; and in consideration of the promises so made, plaintiff agreed to extend the time of payment of said note first maturing, for three weeks, and did extend the time of payment in accordance with such agreement.

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