Hamilton v. Hanneman

• Decision Date: 20 April 1898
• Docket Number: 2,460
• Citation: 50 N.E. 43,20 Ind.App. 16
• Parties: HAMILTON v. HANNEMAN
• Court: Indiana Appellate Court

50 N.E. 43

20 Ind.App. 16

HAMILTON v. HANNEMAN

No. 2,460

Court of Appeals of Indiana

April 20, 1898

From the Marion Circuit Court.

Affirmed.

J. E McCullough and H. N. Spaan, for appellant.

John M Bailey, for appellees.

OPINION

WILEY, J.

Appellant was plaintiff below, and commenced an action in replevin before a justice of the peace, against appellee. He gave the necessary bond, the goods and chattels were seized by the constable under the writ, and the possession thereof delivered to the appellant. In the justice's court, trial was had before a jury, resulting in a verdict and judgment for the appellee. Appellant appealed to the circuit court, where it was tried by a jury, resulting in a verdict for appellee, but the verdict was set aside and a new trial granted. On the second trial, in the circuit court, the jury again returned a verdict for appellee, and over appellant's motion for a new trial, judgment was pronounced on the verdict in favor of appellee. The only error assigned is the overruling of the motion for a new trial. The motion for a new trial was based upon the following reasons: (1) That the verdict was contrary to the evidence; (2) that the verdict is not sustained by the evidence; (3) that the verdict is contrary to law; (4, 5, 6) that the court erred in giving and in refusing to give certain instructions; (7, 8, 9) that the court erred in admitting certain evidence over appellant's objections.

The record shows that appellee is a married woman, and that on September 15, 1893, she borrowed of one Wilson $ 50.00, for which she gave her note for $ 57.50, due in thirty days, and secured the payment thereof by a mortgage on household goods, etc. She made payments on this note from time to time, until July 17, 1894, when she was informed by said Wilson that there was still due the sum of $ 55.00, and that she would have to give a new note and mortgage for that amount in lieu of the former one, and that if she would do so, he would surrender the old note and release of record the old mortgage. She accordingly executed an additional note for $ 55.00, due in thirty days, and secured its payment by a chattel mortgage covering the same property as that embraced in the first mortgage. Before the maturity of the second note, which was payable in bank, Wilson assigned it to appellant, for which appellant is alleged to have paid $ 53.00. When the note became due, appellant notified appellee that he held it, and that she must pay it. She called on him in response to said notice and told him she could not pay it all; that she had paid on said indebtedness over $ 70.00 and that the note was given without any consideration. After this she made payments to the appellant, six in all, in the sum of $ 33.00 and refused to pay any more.

The property mortgaged was of the value of about $ 100.00. On her refusal to pay any additional sum, appellant commenced this action, and claims ownership and possession of the property described in the mortgage, by virtue of a provision therein, that in default of payment, the property should vest absolutely in the mortgagee, and he should have the right to the possession thereof.

The issue tendered by appellee was (1) general denial, and (2) that before the note sued on was given she had overpaid the original note of $ 57.50, in that she had paid over $ 70.00 thereon; that Wilson fraudulently represented to her that there was still due $ 55.00, and that if she would give a new note for that amount and secure it by mortgage, he would accept it in lieu of the old note, etc., and release of record the original mortgage; that relying thereon she executed the note and mortgage in suit; that the same was given without any consideration, and that appellant knew said facts when he took an assignment of said last note.

Appellant contends that he was an innocent, bona fide purchaser, for value, and that the record does not contain any evidence to the contrary. The note was payable in a bank of this State.

True there is no direct and positive evidence in the record, to the effect that appellant knew the facts relating to the transaction, and as set up in the answer, but there are circumstances, conditions, facts and surroundings disclosed by the evidence and record, from which the jury might reasonably infer that appellant was not an innocent purchaser, and that he had knowledge of the facts.

We will now briefly examine the instructions given and refused, of which appellant complains. Appellant tendered two instructions which the court refused to give. In the first one, the court was requested to instruct the jury that there was no direct evidence that appellant knew that there was any defense to the note, or that he purchased it other than in good faith; that the circumstances which would justify such inference must be pointed and emphatic, and must lead directly and irresistibly to the conclusion, etc., and that circumstances calculated to awaken suspicion merely are not sufficient.

The second instruction asked by appellant was as follows: "There is no sufficient evidence in this case tending to show that the plaintiff was not a purchaser in good faith before maturity of the note claimed to have been purchased by him of Wilson, and in arriving at your verdict in this case, you should consider the plaintiff a bona fide holder and purchaser of said note."

Appellant's insistence that it was reversible error to refuse to give these instructions cannot be maintained. While the first instruction may properly have stated the law as to the facts yet there was no error in refusing to give it, because the court, in its own instructions covered the exact questions...