Dorbecker v. Brandt C. Downey Co.

• Citation: 163 N.E. 535,88 Ind.App. 557
• Decision Date: 01 November 1928
• Docket Number: No. 13133.,13133.
• Parties: DORBECKER v. BRANDT C. DOWNEY CO. et al.
• Court: Court of Appeals of Indiana

88 Ind.App. 557

163 N.E. 535

DORBECKER

v.BRANDT C. DOWNEY CO. et al.

No. 13133.

Appellate Court of Indiana, in Banc.

Nov. 1, 1928.

Appeal from Municipal Court of Marion; Clifford Cameron, Judge.

Action by the Brandt C. Downey Company against Anna Dorbecker, in which defendant filed cross-bill against plaintiff and the Hobson-Hall Distributing Corporation. From the judgment, defendant appeals. Affirmed.

Lester C. Morris, Jr., and Walter G. Todd, both of Indianapolis, for appellant.

L. R. Zapf, of Indianapolis, for appellees.

ENLOE, P. J.

This action was commenced by the appellee, Brandt C. Downey Company, filing a complaint against the appellant, wherein it sought judgment upon a promissory note, of which it was the holder, and which note was made an exhibit to the complaint. The complaint was answered by general denial, and also answers of no consideration, and knowledge of defense to said note by said Downey Company, at the time it purchased the same from Hobson-Hall Distributing Corporation, the payee named therein. Appellant also filed a cross-complaint naming as defendants thereto the said Downey Company and said Hobson-Hall Distributing Corporation. The issues were closed and the cause submitted to a jury for trial, which resultedin a erdict in favor of said Downey Company on its complaint against appellant, and in the sum of $140, and attorney's fees, and in favor of appellant and against said Hobson-Hall Distributing Corporation in the sum of $400. From this judgment this appeal is prosecuted, and the questions presented are those hereinafter considered.

Appellant filed a motion to make the complaint more specific, which motion was overruled, and this action is presented as error.

[1] It appears from the record that the appellant, on March 5, 1926, purchased from the appellee Hobson-Hall Distributing Corporation one Vapor-Heat oil burner, 2, No. 1 units, at and for the sum and price of $175; that said property was purchased under a lease, or conditional sales contract; that the price to be paid therefor was $175, of which the sum of $35 was to be and was paid cash in hand; that a note was executed for the remainder of the purchase price, $140, payable in four equal installments, payable on the 10th day of April, May, June, and July, next following, with interest at the rate of 8 per cent. after maturity, and attorney's fees; that said note provided that if any installment thereof was not paid at the time specified, the entire amount of said note should, at the option of the holder thereof, become due and collectable without relief. The note also contained the following recitation, viz.:

“This...