Indiana Trust Co. v. Byram

Decision Date14 December 1904
Docket NumberNo. 5,142.,5,142.
Citation36 Ind.App. 6,72 N.E. 670
CourtIndiana Appellate Court


Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Sophronia A. Byram filed a claim against the estate of Norman S. Byram, deceased. From a judgment for claimant, the Indiana Trust Company, executor, appeals. Affirmed.Quincey A. Myers and Chas. A. Dryer, for appellant. Jas. W. Noel, for appellee.


Appellee filed her claim against the estate of Norman S. Byram, deceased. The case was tried in the Marion circuit court, special finding of facts made, conclusions of law stated thereon, and judgment rendered for the amount of the note which formed the basis of the claim. The findings of fact are in effect as follows: From 1878 to his death decedent was the agent of the appellee, who was his cousin, and loaned and reloaned, invested and reinvested, her money in the purchase of stocks, bonds, notes, and other securities, and upon such terms and conditions and at such times as to him seemed best, retaining such stocks, bonds, notes, and other securities in his exclusive possession and control during the whole time of such agency, acting without charge or compensation for his services, and rendering an annual statement on or about January 1st of each year to appellee concerning her property and business in his hands, which statement he transmitted to her in New York, where she resided, except that no statement was made for January 1, 1902, in the early part of which year he was taken ill, and departed life June 16th. Decedent kept the papers and securities aforesaid in his private safe in his private office, in a paper box on which were the letters and word S. A. Byram.” This box was, at all times prior to his death, in his exclusive possession and control. About six or eight weeks before his death, and while he was too ill to go to his office, he directed that the box be brought to his house, which was done. He did not leave the house after that, and after his death the box was found in a locked bureau drawer therein. It contained the instrument sued on, a promissory note dated at Indianapolis April 1, 1898, payable on demand to the order of S. A. Byram for $738.67, payable at the Capitol National Bank of Indianapolis, with 6 per cent. interest from date and attorney's fees, value received, and without relief from valuation laws, and signed N. S. Byram.” On the face of said instrument the words “Certificate 30 as collateral” were written, and on its back was the following: “Paid on this note July 26, 1898, forty dollars ($40.00); Feb. 1, 1899, paid one hundred fifty seven dollars ($157.00) -all in the handwriting of decedent. The instrument was folded in certificate No. 30 of a corporation named, which certificate was for 10 shares of $100 each in said corporation. The certificate was dated April 23, 1898, and certified that N. S. Byram was the owner thereof. No assignment or indorsement by said Byram was on said certificate. The instrument sued upon was made by the use of an ordinary printed form, the blanks in which were filled in decedent's own handwriting. The indorsements on said note and the signature thereto are also in his handwriting. Said box contained notes, stocks, bonds, and the instrument in suit, with copies of decedent's annual statements rendered to appellee from 1878 to 1901. The itemized statements aforesaid are included in the finding of facts. They refer to certain securities and money which decedent held in his possession belonging to appellee. Neither of them makes any reference to the instrument sued upon, nor to any note purporting to be executed by the decedent payable to appellee, nor do they show an indebtedness from him to her. The fourth and fifth findings of fact were in terms as follows: (4) And the court further finds that at the time of the death of decedent said note was held by decedent as trustee and agent of claimant, and for her benefit, and not for the decedent individually. (5) That said Norman S. Byram as such agent had possession and control of said paper sued upon until the day of his death, and that, except as herein stated, he had never surrendered the same to claimant or to any other person for her use and benefit, and the claimant has never had any control or power over said paper, nor had the same in her possession or control; that afterwards all the papers, notes, stocks, and bonds in said box were turned over to said claimant upon the order of this court, at the request and petition of the executor, except the paper sued upon, and the copies of the annual statements made by decedent to claimant.” The conclusions of law were that the note sued upon was executed and delivered by the decedent to appellee; that she was the owner and holder thereof, and entitled to recover thereon the sum of $614.33; and judgment was rendered in accordance therewith. The special finding, excluding the fourth and fifth items, contains a fair resumé of the evidence. Appellant excepted to the conclusions of law, and filed a motion for venire de novo, based upon the absence of a finding as to the execution of the note in suit. This motion was overruled, as was also his motion for a new trial. Errors are assigned upon each ruling.

The burden of establishing the execution of the note rested upon appellee, by reason of the statute regulating the trial of claims against decedents' estates. Section 2479, Burns' Ann. St. 1901. There was no controversy as to the note having been written and signed by decedent, but execution includes delivery. Nicholson v. Combs, 90 Ind. 515, 46 Am. Rep. 229;Smith v. James, 131 Ind. 131, 30 N. E. 902. The actual controversy between the parties is as to whether or not the note sued upon was delivered. The execution of a promissory note is an ultimate fact. Smith v. James, supra; Vaughan v. Godman, 103 Ind. 499-502, 3 N. E. 257. If it had been found that the note was “delivered,” the other facts necessary to execution being admitted, such finding would have been effective, but it is not in terms made. The finding is therefore insufficient to sustain the conclusions and judgment, unless the evidentiary facts set out are such as that but one inference can be drawn from them, in which event the absence of the statement of the ultimate fact does not prevent the court, as a matter of law, from drawing the unavoidable inference. If the facts found leave room for a difference of opinion between reasonable men, then the ultimate fact must be determined by the court or jury trying the case. Keller v. Gaskill, 9 Ind. App. 670, 36 N. E. 303;Cincinnati, etc., R. Co. v. Grames, 136 Ind. 39, 34 N. E. 714. It appears from the finding that decedent was appellee's agent from 1878 until his death, and that he had authority of the most broad character to make investments and take notes and securities for her. Persons who gave notes to such agent cannot escape liability, when sued, because of the fact that appellee had never had the instruments in her own hands, and did not know of their existence or the existence of the makers. Delivery to the agent was delivery to the principal. Skinner v. Baker, 79 Ill. 496;Fletcher v. Shepherd, 174 Ill. 262, 51 N. E. 212;Miller v. Irish, etc., Ass'n, 36 Minn. 357, 31 N. W. 215;Sowards v. Moss, 58 Neb. 119, 78 N. W. 373.

It is, however, contended that an agent cannot act as such where his personal interest is or may be antagonistic to that of his principal, and that therefore decedent could not deliver his note to himself as the agent for appellee. The rule invoked is a wise and salutary one. It is designed to guard against the abuse of fiduciary duty, and all such transactions are void “as respects the principal unless ratified by him with a full knowledge of all the circumstances.” It is supplemented by the further rule that all profits and advantages procured by the agent in the transaction of agency affairs inures to the benefit of the principal, and it matters not whether such profit or advantage be the result of the performance or of the violation of the duty of the agent. Mechem, Agency, 469; Rochester v. Levering, 104 Ind. 568, 4 N. E. 203;McCormick v. Malin, 5 Blackf. 509. The doctrine asserted would be applicable were the agent attempting to compel his principal to take his note in the final settlement of their affairs, instead of the money with which he had been intrusted. It is not applicable where the principal elects to enforce the note made by the agent, as in the case at bar.

It remains only to inquire whether the inference of delivery necessarily arises from the facts disclosed by the finding. The note in suit is shown to have been written and signed by the decedent, and payments indorsed by him thereon. The business relation between him and appellee was one of extreme confidence upon her part. The annual statement constituted her means of information as to the investments made and the amount due. So far as those statements show, there was not due to her at any time the sum represented by the note in suit. The decedent, however, was not limited by the information contained in the statements made by himself. He knew the absolute and entire truth. What seems to us a discrepancy was no doubt a simple circumstance to him, but in any event it is impossible to explain his conduct with regard to the note upon any theory except that he intended it to be paid, such intention being carried down to the time when the box was brought to him at his residence, since otherwise it is not believable that the shrewd and intelligent man of affairs would have left the note, as he did, among the papers belonging to and connected with appellee's affairs and marked with her name. The acts which constitute the delivery of a promissory note are not essentially different from those required to complete the execution of a deed.” Purviance v. Jones, 120 Ind. 162, 21 N. E. 1099, 16 Am. St. Rep. 319;Anderson v....

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13 cases
  • Crawfordsville Trust Co. v. Ramsey
    • United States
    • Court of Appeals of Indiana
    • February 20, 1913
    ...the deduction is a conclusion of law, and not an ultimate fact. De Pauw v. City, 152 Ind. 443-453, 52 N. E. 608;Indiana Trust Co. v. Byram, 36 Ind. App. 6, 72 N. E. 670, 73 N. E. 1094;Mayer v. C. P. Lesh, etc., 45 Ind. App. 250-255, 89 N. E. 894, 90 N. E. 651. [13] It is next insisted that ......
  • The Crawfordsville Trust Company, Executor v. Ramsey
    • United States
    • Court of Appeals of Indiana
    • February 20, 1913
    ... 100 N.E. 1049 55 Ind.App. 40 THE CRAWFORDSVILLE TRUST COMPANY, EXECUTOR, ET AL. v. RAMSEY No. 7,922 Court of Appeals of Indiana February 20, 1913 . .          . Rehearing denied June 26, 1913, Reported at: 55 Ind.App. 40. at 75. Transfer denied December 9, 1913. ... ultimate fact. DePauw Plate Glass Co. v. City of. Alexandria (1898), 152 Ind. 443, 453, 52 N.E. 608;. Indiana Trust Co. v. Byram (1905), 36. Ind.App. 6, 72 N.E. 671, 73 N.E. 1094; Mayer v. Lesh Paper Co. (1909), 45 Ind.App. 250, 255, 89 N.E. 894, 90 N.E. 651. It is next ......
  • Washington Theatre Co. v. Marion Theatre Corp., 17731.
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  • Washington Theatre Co. v. Marion Theatre Corp.
    • United States
    • Court of Appeals of Indiana
    • October 26, 1948 al. v. MARION THEATRE CORPORATION. No. 17731. Appellate Court of Indiana, in Banc. October 26, 1948 . .          Appeal. from Wells Circuit Court; W. H. ... Company, William O. Connors, and others to impress a. constructive trust on a lease of theatre properties given by. Washington Theatre Company as lessor to William O. ... Brannan v. Kelley, 1925, 83 Ind.App. 250, 148 N.E. 157; Indiana Trust Co. v. Byram, 1905, 36 Ind.App. 6, 72 N.E. 670, 73 N.E. 1094; Gower v. Andrew, 1881,. 59 Cal. 119, 43 ......
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