Bucklen v. Johnson
| Decision Date | 25 February 1898 |
| Docket Number | 2,141 |
| Parties | BUCKLEN ET AL. v. JOHNSON |
| Court | Indiana Appellate Court |
From the Elkhart Circuit Court.
Affirmed.
John M Van Fleet, Vernon W. Van Fleet and Chamberlain & Turner for appellants.
Francis E. Baker and Charles W. Miller, for appellee.
The appellants sued appellee upon the following instrument:
The complaint upon which the case was finally tried was in one paragraph, and averred, in substance, that appellee executed to Seneca D. Kimbark the note sued on, and that said Kimbark indorsed said note in writing to appellants, September 20th, 1891; that said Kimbark complied with all the conditions in said note except that the buildings in which his said factory was placed had a floor room of less than 80,000 square feet, to wit, 57,000 square feet, all of which was well known to appellee; that on September 23, 1891, appellee proposed to appellants that if they would extend the time of payment thirty days, he would pay it at the expiration of said time, which proposition they accepted, and did so extend the time, but that at the expiration of said time, he refused to pay it. There was an averment that said note was due, and a copy of the note and indorsement was filed as an exhibit. A demurrer to the complaint was overruled, and the appellee answered in two paragraphs.
The first paragraph avers that the note sued on was signed under certain circumstances, to wit, that said Kimbark proposed to certain citizens of Elkhart, that if they would donate to him six acres of land near the city of Elkhart, and $ 10,000.00 in money, he would locate his entire manufacturing establishment in said city, to be placed in brick buildings with a floor capacity of not less than 80,000 square feet; that certain of the citizens undertook to procure said donation by subscription, and for such purpose caused notes to be written in blank to be signed by such persons as desired in aid of such subscription; that the note sued on is one of said notes and was signed by appellee, and delivered to one Henry C. Dodge as a subscription to aid in making said donation, upon said proposal. and not otherwise; that divers citizens signed similar notes as a method of subscribing to said donation under terms of such proposal by said Kimbark, which terms were set forth in said notes as a condition precedent to the payment thereof. That afterwards, and prior to June 30, 1890, Kimbark withdrew his proposal, and refused to carry it out, and abandoned said enterprise, but appellee was ignorant thereof until after the beginning of this action; that on June 30, 1890, plaintiffs and Kimbark entered into a written contract, whereby, for a bonus of $ 10,000.00, Kimbark agreed to establish his factory at Elkhart, which said contract, among other things, provided that the buildings he was to erect, were to be according to the plans submitted by one Finn; that the plans referred to showed that the buildings to be erected contained only 57,000 square feet of floor room, instead of 80,000, as was originally agreed; that said buildings were erected in substantial conformity to said last contract, and occupied by Kimbark as a factory; that appellee was absent from said city, and had no knowledge of the abrogation of the first contract, until after the beginning of the action; that, after making the last contract, the plaintiffs caused many of the subscription notes to be surrendered to the makers thereof, and obtained new notes pursuant to the terms of the second contract, amounting in the aggregate to $ 10,500.00; that said last mentioned subscription notes were paid to plaintiffs, amounting to $ 10,350.00, and that they paid over to Kimbark $ 10,000.00 donation called for by said last mentioned contract, pursuant to the terms thereof, long before the beginning of this action; that afterwards appellants obtained possession of appellee's said note without his knowledge or consent, and, instead of surrendering it to him, they wrongfully, and without any consideration, delivered it to said Kimbark, who wrongfully indorsed his name on the back of it without any consideration, and without the knowledge or consent of appellee, and redelivered it to appellants, which is the execution and indorsement of the note alleged in the complaint; that said note was delivered to said Dodge to be by him delivered as a subscription upon said first mentioned agreement, and for no other purpose whatever.
It is further averred that appellee never did make and authorize the delivery of said note to be used as a subscription or donation to the last mentioned agreement; that appellee believed that said note had been delivered to said Kimbark upon and under the terms of said first agreement, and upon the conditions precedent stated in the note, etc. This paragraph of answer is verified, and a demurrer to it was overruled, and appellants excepted. The second paragraph of answer was a general denial, and appellants replied to the first paragraph by a general denial. There was a trial by the court, a special finding of facts, conclusions of law, and judgment for appellee. Appellants have assigned errors in six specifications, but they are all waived by a failure to discuss them, except the fifth and sixth, which are as follows: Fifth.
Appellants have not furnished us with any authorities in support of their contention that the court erred in overruling their demurrer to the first paragraph of answer, and have not convinced us by their argument that the answer was bad. They contend that the complaint avers a waiver of the conditions of the note, and that the answer does not deny such waiver, but there are averments in the answer which made it good. Appellee alleges that the proposition under which the note was signed had been withdrawn; that he did not know that Kimbark and appellants had entered into a new contract; that he did not know that Kimbark had removed his factory to Elkhart on the inducement of appellants guaranty and not on the faith of appellee's and others subscription to the first proposition; that he did not know that Kimbark and appellants had surrendered the first subscription notes given; that he did not know that Kimbark had received the $ 10,000.00 bonus; that he did not know that Kimbark did not have any interest in the note sued on when he indorsed it to appellants; that he did not know that such note was indorsed and accepted by appellants without any consideration, and that he did not know that $ 350.00 in excess of the sum agreed to be paid Kimbark, had been collected and was in the hands of appellants. It is true that the complaint avers a waiver, but such averment must be construed to mean a waiver of the facts set out in the complaint. The answer contains many elements pertinent to the matter in controversy, which are not enumerated in the complaint, which we have above specified, and the court correctly overruled the demurrer thereto.
Before considering the sixth assignment of error, it is necessary to state as briefly as possible, the facts found and the conclusions of law stated thereon. The facts as found, so far as they are pertinent to the determination of the question here presented, are as follows: (1) That prior to May 30 1890, one Kimbark proposed to the citizens of Elkhart, Indiana to remove his factory from Quincy, Michigan, to Elkhart, if they would donate to him six acres of land as a factory site, and $ 10,000.00 in money, to be due and payable as soon as the buildings were erected; said buildings to have a floor capacity of not less than 80,000 square feet; (2) that prior to June 30, 1890, certain citizens of Elkhart undertook to raise $ 10,000 for such donation by subscription, and caused notes to be printed in blank form to be signed by persons desiring to aid such enterprise, said blank notes being of the tenor of the note sued on; that subscriptions in excess of $ 10,000 were procured from solvent persons, by the execution of notes, and the appellant Bucklen to donate the real estate for the factory site. (3) That on May 20, 1890, at the request of Henry C. Dodge, one of the persons who was soliciting subscriptions, appellee executed the note in suit; that said note was delivered to Dodge by appellee to be delivered to Kimbark upon the terms expressed therein; that said note was delivered to Kimbark; that prior to September 23, 1891, said Kimbark removed his factory to Elkhart; that it was placed in brick buildings having a floor space of less than 80,000 square feet, to wit, 57,000 square feet; that prior to said last-named date said factory was in operation, and that all of said facts were known to appellee prior to September 21, 1891. (4) That after the matters stated in findings 1 and 2 had occurred, and prior to June 30, 1890, Kimbark withdrew said proposal and refused to carry out, or attempt to comply with the terms thereof, and abandoned the...
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Lavengood v. Lavengood
... ... consideration of what constitutes a waiver. It has been held ... that a waiver is a voluntary yielding of some existing right ... Bucklen" et al. v. Johnson, 1898, 19 Ind.App. 406, ... 420, 49 N.E. 612; Shedd v. American Credit, etc., ... Co., 1911, 48 Ind ... [73 N.E.2d 688] ... \xC2" ... ...
- Bucklen v. Johnson