Indianapolis Morris Plan Corp. v. McAtee

• Decision Date: 25 March 1955
• Docket Number: No. 18572,18572
• Citation: 125 N.E.2d 261,125 Ind.App. 372
• Parties: INDIANAPOLIS MORRIS PLAN CORPORATION, Appellant, v. P. V. McATEE, Appellee.
• Court: Indiana Appellate Court

Page 261

125 N.E.2d 261

125 Ind.App. 372

INDIANAPOLIS MORRIS PLAN CORPORATION, Appellant, v. P. V. McATEE, Appellee.

No. 18572.

Appellate Court of Indiana, In Banc.

March 25, 1955.

Nathan Nisenbaum, Indianapolis, James D. Acher, Franklin, for appellant.

Rochford & Rochford, Indianapolis, for appellee.

CRUMPACKER, Judge.

The appellant sued the appellee on a promissory note and the appellee answered in three paragraphs: the first of which is an unverified denial under Rule 1-3; the second pleads no consideration; and the third alleges payment. These issues were submitted to a jury for decision and its verdict was for the appellee and the judgment of the court is that the appellant take nothing on its complaint. We are asked to reverse upon these propositions: (1) The verdict is contrary to law; (2) the court erred in the admission of certain testimony over the appellant's objections; (3) the court erred in overruling the appellant's motion for a directed verdict made at the conclusion of all the evidence; and (4) error in refusing to give certain instructions to the jury. We do not reach propositions 2, 3 and 4 because we are convinced that the verdict of the jury is contrary to law.

As background for this conclusion a review of the pertinent evidence becomes necessary. In October of 1946, the appellee purchased a new truck for use in his business. In order to raise the money to pay for it he borrowed the sum of $2,250.22 from the appellant to which was added interest in advance and he executed his promissory note for the full amount payable in 17 monthly installments of $140 beginning December 7, 1946, and an 18th installment of $93.02 due June 7, 1948. To secure the payment of this note the appellant took a chattel mortgage on the truck involved duly executed by the appellee. After having paid the first installment on said truck the appellee and one Charles E. Stein entered into an agreement whereby Stein was to pay the appellee the sum of $3,500 for his business, inventories and equipment, including said truck, and assume appellee's debt to the appellant as evidenced by said note. This was agreeable to the appellee provided the appellant would release him from all liability by reason of said note and accept Stein as the debtor in his stead. To ascertain the appellant's attitude in this respect the appellee and Stein called at the appellant's office in Indianapolis and were informed, by proper officers of the corporation, that Stein would be acceptable as a substitute debtor for the appellee and that all the appellee would have to do, as he expressed it, 'was to sign some papers that would clear up any sale to Mr. Stein's company and a release that would permit the Morris Plan to transfer that from McAtee to the Fi-Blak' (Stein's corporation). Certain papers were prepared and the appellee signed them and he was told by the appellant that he could leave and that it would 'finish the transaction with Stein at a later date.' These papers were not introduced in evidence but we think it reasonable to infer that the word 'that,' which we have emphasized above, refers to the note in suit. Although Stein met the payments on the note due in January and February of 1947, there is no evidence in the record that he ever 'finished the transaction' with the appellant in such manner as to obligate himself to pay either the appellee's debt or a substituted debt of his own. In fact the undisputed evidence is quite the contrary. Stein testified that he did not sign any note obligating either him or his corporation to the appellant in connection with this transaction nor did he otherwise agree to assume and pay the appellee's debt to the...