Helms v. Appleton

• Decision Date: 09 October 1908
• Docket Number: No. 6,413.,6,413.
• Citation: 85 N.E. 733,43 Ind.App. 482
• Parties: HELMS v. APPLETON et al.
• Court: Indiana Appellate Court

43 Ind.App. 482

85 N.E. 733

HELMS

v.APPLETON et al.¹

No. 6,413.

Appellate Court of Indiana, Division No. 2.

Oct. 9, 1908.

Appeal from Superior Court, Marion County; George F. Mull, Judge pro tem.

Action by Welford D. Appleton and others against Francis M. Helms. From a judgment for plaintiffs in the superior court, on appeal from justice's court, defendant appeals. Affirmed, if remittitur be entered; otherwise reversed, and new trial granted.Philip Wilkinson, for appellant. Lawrence R. Cartwright, Richard J. Roberts, and Foster V. Smith, for appellees.

RABB, C. J.

This action was begun by the appellees against the appellant before a justice of the peace, and was founded upon a written instrument in the form of a promissory note. An appeal was taken from the justice of the peace to the court below, where the cause was tried by the court. The trial was begun on the 22d day of March, 1906, and upon that date the evidence was closed and the cause continued for argument. Later in the term, on the 24th day of April, the appellees moved the court for leave to amend their complaint with reference to the claim for attorney's fees and to introduce further evidence. Further evidence was then heard by the court, but no finding or judgment rendered, and a finding and judgment was not rendered in the cause until the next term of the court, on the 25th day of September, 1906, when a finding and judgment was rendered in favor of the appellees. At that time no ruling of the court had ever been entered of record upon appellees' motion to be permitted to amend their complaint with reference to attorney's fees. Subsequently, on the 28th day of December, 1906, over the objection and exception of appellant, and on appellees' motion, a nunc pro tunc order was directed to be entered by the court, showing the sustaining of appellees' motion for leave to amend their complaint and to introduce further evidence as of the 27th day of April, 1906. Appellant's motion for a new trial was overruled on the 28th day of September, 1906.

The errors assigned and discussed here are: (1) That the appellees' complaint does not state facts sufficient to constitute a cause of action; (2) that the court below erred in overruling appellant's motion for a new trial; and (3) that error intervened in the action of the court in permitting the nunc pro tunc correction of the record to be made.

The instrument in writing, which was the foundation of the action, was as follows: “$133.34. Tipton, Ind., Dec. 21, 1903. Six months after date, for value received, I promise to pay [the appellees, naming them], or order, one hundred thirty-three 34/100 dollars, and attorney's fees. Negotiable and payable at the State Bank of Tipton, Tipton, Ind., without any relief whatever from valuation or appraisement laws. Interest at the rate of 7 per cent. per annum from date until paid, payable annually. The drawers and indorsers severally waive presentment for payment, protest, and nonpayment of this note. [Signed] F. M. Helms.” Upon the back of the note, at the time of its execution, and forming a part of it, was this indorsement: “This note is given for the purpose of indemnifying the within parties from any loss on amount secured by them for money borrowed by said parties for the purpose of liquidating debts contracted by said Acme Oil & Gas Company, and it is collectible only in case, when the same is due and unpaid on said note, in proportion to any unpaid balance to amount of stock held at organization of said company.”

In the complaint filed before the magistrate, the initials of the Christian names of the appellees were used, and none of their Christian names were written out in full, and the complaint is criticised upon this score. It is also contended that the instrument sued upon shows that it was only to be paid upon a condition, and that the complaint fails to allege the performance of the condition upon which the money due upon the note was to become payable. We think neither of these criticisms can be sustained. The same rules regarding the sufficiency of a complaint in the circuit court do not obtain before a magistrate. The filing of the instrument, without any further complaint, would have been sufficient. Any statement of the cause of action before a magistrate is sufficient if it apprise the defendant of the nature of the claim, and be such that a judgment rendered in the case would be sufficient to bar another action for the same cause (Crocker v. Hoffman, 48 Ind. 207, and cases cited), and the question of the use of the initials, instead of the full Christian name, in designating the plaintiffs in the case, cannot be raised for the first time in this court (Morningstar v. Wiles, 96 Ind. 458, and cases cited).

The second error assigned calls in question the action of the court in overruling appellant's motion for a new trial. One of the reasons assigned in appellant's motion for a new trial is the insufficiency of the evidence to sustain the finding, and this involves the proper interpretation of the contract sued on. The evidence shows that the notes given by the appellees for money borrowed by them to pay the debts of the Acme Oil & Gas Company were wholly unpaid and long overdue at the time the suit was begun. It is appellant's theory that by the terms of the obligation sued on nothing was due thereon until the appellees had actually paid something upon the liability they were under for the borrowed money on account of which the indemnity was given, and that the appellant's contract was to indemnify the appellees against loss or damage on account of the liability they had assumed, and not to indemnify them against a liability for probable loss; whereas the appellees contend that the contract sued on contains an absolute agreement to pay, and should be construed as a contract to indemnify against liability for probable loss. The face of the instrument contains an absolute agreement to pay a given sum of money at a particular date. It is the settled law that, when there is a direct promise to pay the debt indemnified against, an action will lie for a breach of such contract in favor of the party indemnified, upon the maturity of the debt indemnified against, and without the payment of the debt on his part. Gunel v. Cue, 72 Ind. 34;Weddle v. Stone, 12 Ind. 625;Devol v. McIntosh, 23 Ind. 529;Malott v. Goff, 96 Ind. 496;Strong v. Taylor Sc. Tp., 79 Ind. 208; So. Side, etc., Co. v. Cutler, etc., 64 Ind. 560;Bodkin v. Merit, 86 Ind. 560;Milburn v. Milburn, 143 Ind. 187, 42 N. E. 611.

This is conceded by appellant, but he contends that there is a clear distinction to be taken between the contract here sued on and that contained in an ordinary indemnifying mortgage, whereby the mortgagor agrees to pay the debts secured by the mortgage, and that the condition upon which the note sued on here was to become payable distinguishes this case from the cases cited; and, as we understand his argument and construction of...