Jackman Cigar Mfg. Co. v. John Berger & Son Co.

• Decision Date: 12 January 1944
• Docket Number: 16950.
• Court: Indiana Appellate Court
• Parties: JACKMAN CIGAR MFG. CO. v. JOHN BERGER & SON CO. et al.

52 N.E.2d 363

114 Ind.App. 437

JACKMAN CIGAR MFG. CO. v. JOHN BERGER & SON CO. et al.

No. 16950.

Appellate Court of Indiana, in Banc.

January 12, 1944

[Copyrighted Material Omitted]

Bamberger & Feibleman and Alan W. Boyd, both of Indianapolis, for appellant.

Earl F. Gruber, of Frankfort, Clifford Ellig and Oliver G. Bailey both of Cincinnati, for appellees.

DRAPER Judge.

This is an action by the appellee, the John Berger & Son Company hereafter called Berger Co., to foreclose a mortgage covering real estate and personal property executed by appellee N. N. Smith Company, hereafter called Smith Co., and to recover any deficiency against appellant. The appellee Clinton County Bank & Trust Company, trustee under the mortgage, having refused to bring an action to foreclose it, was made a party defendant and is hereafter called the Bank.

The court found the facts specially and stated its conclusions of law thereon in favor of appellee Berger Co., and entered a personal judgment in its favor and against appellant and appellee Smith Co. for $147,428.36, for a foreclosure of the mortgage and the sale of the mortgaged property, the deficiency, if any, to be levied on the property of Smith Co. and appellant. The appellant here challenges the personal judgment against it. No question has been raised regarding the foreclosure of the mortgage, and that feature of the case will not be discussed.

The appellant questions certain of the court's conclusions of law, and in its motion for new trial asserts that the decision of the court is not sustained by sufficient evidence and is contrary to law.

Berger Co. insists that neither cause for new trial presents any question, for the reason that all of the evidence is not in the record. The determination of the asserted causes for new trial does require a consideration of all of the evidence given in the cause, and even though the bill of exceptions purports to contain all of the evidence, yet if it shows on its face that it does not, the sufficiency of the evidence may not be considered by this court. Weaver et al. v. Kennedy, 1895, 142 Ind. 440, 41 N.E. 810; Noerr, Administratrix, v. Schmidt, Trustee, et al., 1898, 151 Ind. 579, 51 N.E. 332; Thorne v. Indianapolis Abattoir Co., 1899, 152 Ind. 317, 52 N.E. 147.

The transcript and assignment of errors was filed in this court on April 2, 1942, the appellant's brief on May 1, 1942, and the appellee's brief, in which attention is called to the fact that a large number of exhibits and a deposition are not contained in the bill of exceptions containing the evidence, was filed on July 30, 1942. On December 19, 1942, the appellant procurred the entry of an order in the trial court whereby the bill of exceptions was corrected nunc pro tunc to include therein the deposition and copies of each of the original exhibits. On February 19, 1943, this court granted appellant's petition for a writ of certiorari, whereby said bill of exceptions was ordered to be amended and corrected in accordance with the entry nunc pro tunc, and the clerk of the trial court was directed to certify it as corrected to this court. On November 30, 1943, when this cause was argued orally in this court, no return to said writ of certiorari had been made, and none was ever made until December 11, 1943, when the Clerk of the trial court made return to the effect that he could not comply with the order of this court because of the failure of the appellant to furnish him with copies of the exhibits specified in the nunc pro tunc order above referred to. No other return to said writ was ever made, nor have said deposition or copies of said exhibits ever been filed in or certified to this court as a part of the bill of exceptions containing the evidence. On December 16, 1943, seventeen months after its attention was called to the deficiencies in the bill of exceptions, ten months after the issuance of the writ of certiorari and after the cause had been fully briefed and argued, the appellant filed its petition for an alias writ of certiorari, asking us to permit the inclusion of original exhibits instead of copies thereof in the bill of exceptions. "It is the duty of the party obtaining an order for a certiorari, to use due diligence in having the writ issued and delivered to the clerk of the Court below, and in having a complete record made out and transmitted to the clerk of this Court." Bannister v. Allen, 1825, 1 Blackf. 414. The allegations of the petition for alias writ of certiorari are controverted by Berger Co., and we have concluded that the record in this case shows an utter lack of the diligence required of the appellant. We, therefore, hold that all of the evidence is not in the record and that the overruling of appellant's motion for new trial presents no question.

From the special findings it appears that Smith Co. on July 1, 1926, executed to the Bank, as trustee, its certain mortgage covering its factory buildings in Frankfort and Lebanon, the machinery, equipment and tools used in the manufacturing of cigars in said buildings, and the trade names and good will of the business operated in said plants, to secure nineteen bearer bonds, each for the principal sum of $10,000 payable with interest every six months commencing January 1, 1927, and that Berger Co. since January 1, 1930, has been the owner and holder of all of the outstanding bonds secured by said mortgage.

That on December 6, 1930, eleven of the bonds remained unpaid, and Smith Co. executed to the appellant a conditional sale agreement covering a part of the mortgaged property, consisting of certain machinery, equipment, inventories, trade names and good will of the Frankfort factory, all of which, with the exception of inventories, was covered by the mortgage and was sold subject thereto. The bond due January 1, 1931, was to be and was paid by Smith Co. The consideration for the sale of the property mentioned was $105,917.71, of which $5,917.71 was to be and was paid in cash by appellant, and the balance of $100,000 "the second party (appellant) does hereby assume and agree to pay as a part of the purchase price of the property * * * together with all interest thereon from and after January 1, 1931". Title was to remain in Smith Co. until the "whole * * * of said bond issue shall be paid in full according to its terms and the property covered by the same shall be discharged from all liability on account thereof. Said second party (appellant) does hereby expressly agree to pay said $100,000.00 of said bond issue in all things in accordance with the terms of the bonds representing said indebtedness and the mortgage securing the same * * *", and in event of the failure of appellant to pay, all of his rights in said property "shall at once terminate * * * and first party (Smith Co.) shall have the right to * * * take possession thereof * * * and shall retain any and all payments theretofore made as compensation for the use of such property prior to default." The contract further provided that the collection of any payment due on the purchase price by suit should not constitute a waiver of the rights of Smith Co. to retake said property for any subsequent default in payment. Of even date, one Duys in writing guaranteed the payment of the sums to be paid by appellant, promptly as the same became due. On or about December 8, 1930, Berger Co. was informed of the execution of said agreement and made no objection thereto, and the appellant took and commenced the operation of the business.

That prior to August 4, 1931, Berger Co. accepted and assented to the assumption by the appellant of the debt secured by the mortgage, and that the appellant had notice and knowledge of that fact on and prior to November 11, 1931, when, the business being unprofitable to appellant, it did without knowledge, assent or waiver on the part of Berger Co. enter into a written agreement with Smith Co. and Duys, whereby appellant resold to Smith Co. all right, title and interest in the property obtained by the agreement of December 6, 1930, subject to the mortgage, together with certain inventories and items not covered by the mortgage, in consideration of the surrender to Smith Co. of certain of its stock held by Duys and the assumption by appellant of a certain debt due from Smith Co. to H. Duys & Co., Inc., and the cancellation of certain leases, and Smith Co. did thereby release and discharge appellant from all liability on the mortgage and bonds and Duys from his agreement of December 6, 1930, and did further agree to save appellant and Duys harmless on account of the appellant's assumption and agreement to pay said mortgage and bonds, contained in said contract, and Duys agreement endorsed thereon. For the purposes of this opinion we adopt appellant's contention that the November agreement amounted to a rescission of the December agreement.

The appellant first contends that the agreement to pay the bonds was not intended to be for the benefit of Berger Co., and it had no right of action thereon.

Whatever was the ancient law with respect to the rights of a third party to enforce a contract between others, made for his benefit, it is now the settled law of this jurisdiction that a stranger to the contract and the consideration may maintain a suit to enforce such an agreement when it clearly appears that it was the purpose, or a purpose, of the contract to impose an obligation on one of the contracting parties in favor of such third party. It is not enough that the performance of such a contract would be beneficial to such third party. To confer upon him the right to maintain an action based upon it, it must appear that it was the intention of one of the parties to it to require performance of some part of it in favor of such...