Judy v. Woods

• Decision Date: 07 November 1912
• Docket Number: No. 7,677.,7,677.
• Citation: 99 N.E. 792,51 Ind.App. 325
• Parties: JUDY v. WOODS.
• Court: Indiana Appellate Court

51 Ind.App. 325

99 N.E. 792

JUDY

v.WOODS.

No. 7,677.

Appellate Court of Indiana, Division No. 1.

Nov. 7, 1912.

Appeal from Circuit Court, Newton County; Charles W. Hanley, Judge.

Action by John F. Judy against William L. Woods, in which defendant filed a counterclaim. From a judgment for defendant on his counterclaim, plaintiff appeals. Affirmed.

The eighth paragraph of defendant's answer designated a cross-complaint by appellant, alleged in effect that: Defendant for other and further paragraph of answer to the plaintiff's complaint avers that on or about March 28, 1906, plaintiff and defendant then had a full and final settlement of all their accounts, which final settlement was had under the terms and conditions of said contract entered into by and between this plaintiff and the defendant on February 15, 1904, but instead of meeting on February 15, 1906, for said accounting the same was delayed to on or about the foregoing date, including the items of accounts, and in said settlement it was found that the plaintiff was indebted to this defendant in the sum of $1,881.81, and that in said settlement it was further found that the plaintiff and this defendant held notes, an itemized statement of which is filed herewith, and it was further agreed upon in making said settlement that the said notes belonged to the plaintiff, which he accepted in making said settlement, and it was further agreed that this defendant should retain the custody of said notes for collection, and the proceeds derived therefrom should be applied to the payment of said sum so found due this defendant from said plaintiff, and, on failure to collect of said notes a sufficient sum for the payment of said debt, then it was agreed that the plaintiff should make up said residue in cash; that under said agreement and settlement defendant has been using diligence in collecting said notes, and has collected of said notes the sum of $129, and still retains possession of said notes which he now brings into court for the benefit of plaintiff and demands judgment for the residue of said claim, to wit, the sum of $1,752.81, with interest thereon from March 28, 1906, wherefore defendant demands judgment that the said account so stated as herein set forth be binding, and that he have judgment against the plaintiff herein on said accounting and settlement in the sum of $1,752.81 and interest thereon from March 28, 1906, and for costs, etc.

Paragraph 9 alleges that on or about January 3, 1898, defendant and plaintiff entered into a contract, by the terms of which the plaintiff was to furnish the capital and defendant was to furnish the building and appurtenances thereto in which to conduct said business and to conduct the mercantile business at the village of Parr, the property was to belong to the plaintiff and defendant, and they were to divide the net profits equally; that, pursuant to said contract, plaintiff did furnish goods and merchandise, and this defendant did take full possession thereof, and had full and complete charge and control of said business by advising with plaintiff, and they mutually continued said business under said arrangement until February 15, 1904, at which time the plaintiff and defendant effected a settlement and closed up said business; that at the time of making said settlement plaintiff and defendant executed a written contract of settlement setting out the terms and conditions of such settlement, and the conditions of the termination of said business, a copy of said contract is filed herewith; that, pursuant to said settlement and under said contract of settlement, this defendant did take possession of said notes and accounts, and has collected therefrom the sum of $8,159.12, of which sum the defendant has paid over to the plaintiff the sum of $8,030.12; that, according to the terms and conditions of said contract, the plaintiff is indebted to this defendant in one-half of the sum collected by this defendant and remitted to the plaintiff in excess of $6,365.94, to wit, $832.09; that the plaintiff is further indebted to this defendant in the sum of $217.63, an itemized statement of which is filed herewith.

This defendant further avers that he has in his possession and custody the notes remaining uncollected, a statement of which is filed herewith marked “B” and made a part hereof referred to in the settlement and contract hereinabove set out in the sum of $7,049.20; that he has made diligent and careful effort to collect said notes and has been unable to collect any of said notes other than $129, and that he brings the same into court and surrenders them for the use and benefit of the plaintiff herein; that this defendant has in all things complied with the terms and conditions of said contract on his part, but that the plaintiff has failed and refused to comply with the terms and conditions of said contract on his part, in this, that he has failed and refused to pay this defendant one-half of the money collected from the notes and accounts mentioned and referred to in said contract in excess of the the sum of $6,365.94; that by virtue of the facts herein alleged the plaintiff is indebted to the defendant in the sum of $1,200, which sum is due and remains unpaid.

Paragraph 10 alleges that defendant for other and further paragraph of answer by way of counterclaim against the plaintiff avers that it is true that in January, 1898, the plaintiff and this defendant entered into a contract of partnership to conduct the mercantile business in the village of Parr, Jasper county, Ind.; that said business was so conducted by the parties thereto until about February 15, 1904, when by mutual agreement said partnership was dissolved and a full accounting and settlement was then had between the parties hereto, and said settlement and agreement of settlement was placed in writing, a copy of which contract and agreement is filed herewith marked “Exhibit A,” and made a part hereof, to which reference is had; that it was found in said settlement that the plaintiff in this action and the defendant in this action had received of and from said business all the capital each had put therein and a like share of the profits and that the assets of said firm consisted of notes as set out in said contract, the book accounts, and the personal property as therein described; that in said accounting and settlement it was agreed that this defendant should take as his share of said assets and as his share of the profits all of the merchandise, horses, harness, buggies, and fixtures and everything else belonging to said partnership business at the approximated value of $6,365.94, and, in consideration of this defendant taking said property as his share of the business, it was agreed as set forth in said contract that a like sum should be collected from said notes and turned over to this plaintiff as his share of said business and no more.

This defendant further avers that it was agreed that the approximate face value of said notes was $10,943, and that in consideration of this defendant using his best efforts in collecting said notes, after collecting enough to pay the plaintiff his said amount, the residue so collected should be divided equally between the parties hereto, the one-half thereof coming to this defendant for his expense, time, and talent in looking after the collection of said notes for and in behalf of the plaintiff; that, in pursuance of said contract and agreement, this defendant collected the said book accounts as valued in said accounting and settlement at $729 and has collected of said notes down to the present time the aggregate sum of $7,450.12, thus making the aggregate sum collected of said trust the sum of $8,159.12, and this defendant files an itemized statement of said notes yet remaining on hand, marked “Exhibit B” and...