George v. Hurst

• Decision Date: 24 November 1903
• Citation: 68 N.E. 1031,31 Ind.App. 660
• Parties: GEORGE et al. v. HURST.
• Court: Indiana Appellate Court

31 Ind.App. 660

68 N.E. 1031

GEORGE et al.

v.HURST.

Appellate Court of Indiana, Division No. 1.

Nov. 24, 1903.

Appeal from Circuit Court, Sullivan County; O. B. Harris, Judge.

Action by Dennis Hurst against Flora George and another. Judgment for plaintiff, and defendants appeal. Reversed.S. R. Hamill, A. J. Kelley, and Buff & Stratton, for appellants. Hughes & Caldwell, C. D. Hunt, J. O. Piety, and Hays & Hays, for appellee.

COMSTOCK, J.

This action was instituted in the Vigo circuit court by the appellee against the appellants upon a promissory note for $450, claimed to have been executed by appellants to the appellee. To the complaint the appellant Flora George filed an answer in two paragraphs; in the first pleading want of consideration, in the second non est factum. The appellant Alice Hunter filed her separate answer in three paragraphs; in the first pleading want of consideration; in the second that she executed the note as surety for her codefendant Flora George, and received no consideration therefor, and that at the time she so executed said note she was, and still is, a married woman; in the third non est factum. Appellee replied to the separate answer of Flora George by a general denial, and to the separate answer of Alice Hunter he filed two paragraphs of reply. The first is a general denial. In the second he admits that at the time said Alice Hunter signed the note sued on she was, and still is, a married woman, but that the note was executed as evidence of a loan of money made by him and paid to her at the time for her own use and benefit. At this stage of the proceedings the venue was changed from the Vigo circuit court to the Sullivan circuit court, in which last-named court the appellants filed a joint answer, in which they alleged, in substance, that at the time they signed the note one Wright L. Kidder was alive; that a note was signed by the appellants, with the name of the payee left blank, at the request of the said Wright L. Kidder; that said note was executed in consideration of the sum of $450, money advanced to the appellant Flora George by the said Wright L. Kidder; that said Flora George was principal in said note, and the said Alice Hunter surety thereon; that subsequent to the signing of said note the name of appellee was written in said note without the knowledge or consent of the appellants. The said joint answer further alleges that on the 8th day of August, 1901, Wright L. Kidder departed this life, leaving as his only heirs at law his widow, Elizabeth Kidder, and two sons, Frank L. and Edson W.; that Edson W. and Elizabeth Kidder were, by the Vigo circuit court, duly appointed administrator and administratrix of the estate of said Wright L. Kidder; that said estate has been finally settled, and the administratrix and administrator finally discharged; that all the debts of said estate have been fully paid; that on the 11th day of January, 1902, Edson W. Kidder departed this life, leaving as his only heirs at law his widow, Kate Kidder, and two children, Katherine and Margaret; that Kate Kidder has been duly appointed administratrix of the estate of Edson Kidder, and said estate is now pending settlement in the Vigo circuit court. Appellee replied to the joint answer by general denial. A trial by the court without the intervention of a jury resulted in a judgment in favor of the appellee for $624.80. The overruling of appellants' motion for a new trial is the only error assigned.

The first reason for a new trial discussed is the exclusion as evidence of an envelope addressed to Flora George, Indianapolis, Ind., with post mark dated June 27, 1897; the second, exclusion of the letter identified by appellant as the one received by due course of mail, and inclosed in said envelope addressed to her at Indianapolis, at which place she was then residing. It appears from the evidence that appellee introduced appellant George to one Wright L. Kidder, by whom he had been formerly employed. The testimony tends strongly to show that subsequently, for a number of years, improper relations existed between said Kidder and said George. The testimony also tends strongly to show that in delivering the money for which the note in suit was executed, appellee was acting as the agent of Kidder, and retained $50 out of the $450 furnished by Kidder for procuring the money. Appellant George testified that appellee told her that...