Jordan v. Kittle

• Decision Date: 25 February 1926
• Docket Number: No. 12285.,12285.
• Citation: Jordan v. Kittle, 88 Ind.App. 275, 150 N.E. 817 (Ind. App. 1926)
• Parties: JORDAN v. KITTLE.
• Court: Indiana Appellate Court

88 Ind.App. 275

150 N.E. 817

JORDAN

v.KITTLE.

No. 12285.^*

Appellate Court of Indiana, Division No. 2.

Feb. 25, 1926.

Appeal from Superior Court, Marion County; Linn D. Hay, Judge.

Action by John S. Kittle against Arthur Jordan. Judgment for plaintiff, and defendant appeals. Affirmed.Noel, Hickam & Boyd, of Indianapolis, for appellant.

Miller, Dailey & Thompson, of Indianapolis, for appellee.

McMAHAN, J.

Complaint by appellee against appellant in three paragraphs. The first paragraph alleges that prior to January 1, 1920, appellant and appellee had numerous mutual dealings, and on said day met and cast up their accounts, when it was agreed that appellant owed appellee $33,985.59, which appellant agreed to pay; that appellant later paid appellee $6,000, leaving a balance of $27,985.59 due appellee. The second paragraph alleges that appellant was indebted to appellee in the sum of $27,985.59 for moneys had and received for the use and benefit of appellee. It also sets out facts touching the transactions between the parties, including statements of the account at different times and payments by appellant to appellee. The third paragraph alleges that prior to January 1, 1920, appellee had loaned appellant various amounts, and that on January 1, 1920, appellant owed appellee $33,985.59, on which he had thereafter made payments aggregating $6,000. To each of these paragraphs of complaint appellant filed an answer, the first two paragraphs being general denial and payment.

The amended third paragraph of answer alleges that on and prior to January 1, 1920, appellant was engaged in the ice and coal business under the name of the City Ice & Coal Company, and in the printing business under the name Printing Arts Company; that appellee was employed by appellant to assist in the management and operation of said ice and coal business and of said printing business, and rendered services for appellant under an agreement that appellant would pay him a salary of $3,600 a year, and, in addition thereto, one-half of the net profits of said ice and coal business and of said printing business, as the same should be determined at the end of each calendar year, and admits that on January 1, 1920, appellant was indebted to appellee under said agreement of employment in the sum of $33,985.59, on which he afterwards had paid appellee $6,000 leaving a balance of $27,985.59 owing by appellant to appellee on said day. It also allegesthat for many years prior to March 24, 1920, appellant and one Rosealba J. Jordan were husband and wife; that said Rosealba separated from and abandoned appellant in January of that year, making grave charges against him, and claiming to have a cause for divorce; that appellant at all times denied said charges, and continuously and repeatedly sought a reconciliation with his wife, at no time desiring that she procure a divorce from him, and that he always opposed any divorce proceeding; that his wife could not be dissuaded from prosecuting a divorce proceeding, and on March 24, 1920, appellant, in order to avoid notoriety and publicity which would be degrading to himself, wife, and children, and with the consent of appellee, entered into a written contract with his wife. This contract is set out in the answer, and after stating that the wife claimed to have a cause for divorce and proposed to file a complaint for divorce against appellant, and that they were desirous of avoiding unnecessary litigation and of making a complete settlement of all property rights against each other conditioned upon the granting of a divorce to his wife upon the sole ground of cruel treatment, is in substance as follows:

Appellant agreed to convey and deliver to his wife, and she agreed to accept in full payment and in lieu of a judgment for alimony and in full satisfaction of all claims and demands against appellant and as a complete division of property rights, certain described real estate and securities. Among the property described was the property and business then and theretofore owned and operated by appellant under the name of the City Ice & Coal Company, including all the real estate, personal property, accounts, and other property pertaining thereto, “subject to a certain contract existing between said Arthur Jordan and John S. Kittle respecting said business and the profits thereof, and subject to such other rights as said John S. Kittle may have acquired therein, *** such transfer to be conditioned upon the written consent of said John S. Kittle; the property and business heretofore and now conducted under the name of Printing Arts Company, including the real estate in which said business is conducted, and all the personal property, accounts, and other property pertaining thereto, *** subject to all rights of John S. Kittle.” Appellant further agreed to execute all transfers and deeds of conveyances necessary to vest a good title in his wife and to deliver such transfers and conveyances with certain enumerated securities to Henry Eitel, who should hold the same in escrow pending judgment in the divorce proceeding and pending the arrival of the first day of the term of court following the term at which the divorce should be granted his wife, when said Eitel should deliver said transfers, conveyances, and property to Mrs. Jordan.

The fourth section of this contract provides: That at the time of the delivery of said transfers, conveyances, and personal property by appellant to Henry Eitel, Mrs. Jordan should deliver to said Eitel “in a sealed package not to be opened by him, all affidavits, statements, documents, other writings and things relating to the alleged cause of action for divorce on grounds other than cruel treatment, by whomsoever made,” together with affidavits of Mrs. Jordan's attorneys stating that such affidavits, and writings constituted all affidavits, statements, and writings in their possession or in the possession of Mrs. Jordan, her agents, or representatives, or in existence to their knowledge, and which might in any way reflect upon or make charges against the character or conduct of appellant, and which statements, documents, and writings should at the time of the delivery by said escrow of said assignments, transfers, conveyances, cash and bonds to Mrs. Jordan, be examined and inspected by appellant's attorney and by no other person whomsoever, and after such examination and inspection the same should be burned and destroyed by said escrow in the presence of the attorneys for appellant and his wife.

Some of the property to be conveyed to Mrs. Jordan was owned by appellant and persons other than appellee as partners. Said agreement also provided that there should be delivered to Eitel a full and complete release of appellant as to all partnership contracts with respect to any and all of the properties and “a full and complete assumption by said Rosealba J. Jordan of any and all liability arising, or which may arise or accrue, against said Arthur Jordan out of any and all of said business or property so transferred, and an agreement to protect said Arthur Jordan against any payment by him on account of any such liability, and the necessary legal steps shall be taken to notify all persons concerned of the dissolution of such partnership and of the retirement therefrom of said Arthur Jordan, subject to the consent of Charles Libby, John S. Kittle, and Orlando B. Iles as to the partnerships in which they are respectively interested.” Appellant reserved the income and profits from the ice and coal business and the printing business from January 1, 1920, to the date of delivery of said instruments and documents to the respective parties by Eitel.

Appellant also agreed to pay his wife “for her use in the payment of her attorneys $100,000 in cash or acceptable securities,” which were to be placed in the hands of said Eitel to be delivered contemporaneously with the delivery of the transfers, conveyances, and property to Mrs. Jordan, after the end of the term of court in which said divorce should be granted and not otherwise. It was also agreed therein that if the divorce should not be granted upon the ground of cruel treatment or if it was granted upon grounds other than cruel treatment, or if said proceedings were abandoned by her, Eitel should redeliver to appellant all of said assignments, transfers, and other things “including attorneys' fees placed in escrow,” and that Eitel should return to Mrs. Jordan all of said documents and other things which she was required by the agreement to place in escrow, and the agreement thenceforth to be null and void.

Following the signatures of appellant and his wife to this agreement, appellee signed a statement consenting to all of the provisions and terms of the agreement which affected him or which concerned any contract, partnership, or other relation of his with appellant and in which he agreed to execute any and all instruments and to do any and all things necessary and proper on his part to effectuate the contract.

This answer also alleges that appellee, acting as the agent of Mrs. Jordan, investigated the value of appellant's properties, and was acquainted with the terms, conditions, and purpose of said contract; that appellant refused to execute said contract unless appellee joined therein in the manner above set forth, and that in executing said contract appellant relied upon such execution by appellee, believing appellee would perform all the things which said contract required of him; that appellant has performed all the terms and conditions of the contract as required of him; that on June 11, 1920, said contract of March 24, 1920, became and thereafter was in full force and effect, and that on June 11, 1920, Eitel delivered to appellant a certain instrument reciting that appellant had assigned and transferred to Mrs. Jordan all his rights in the property and business of the said printing company; that appellee and one Warner each...