Keller v. Orr

Citation7 N.E. 195, 106 Ind. 406
Case DateMay 22, 1886
CourtSupreme Court of Indiana

106 Ind. 406
7 N.E. 195

Keller and others
v.
Orr and others.

Supreme Court of Indiana.

May 22, 1886.


Appeal from Fayette circuit court.


Chas. Roehl and Claypool & Claypool, for appellants.

Conner & Frost, for appellees.


Elliott, J.

The complaint of the appellants, who were plaintiffs below, is founded on a promissory note and a mortgage executed by the appellees to secure its payment. The note and mortgage were executed to Francis M. Roots, and by him assigned to the appellants. The appellees answered separately, but the second paragraph of the answer of William J. Orr is substantially the same as the third paragraph of Mary E. Orr's answer, and a decision as to the sufficiency of one of them will determine the sufficiency of both. It is alleged in these answers that the defendant William J. Orr held four promissory notes against David Veatch, and three against Walter E. Thomas; that the plaintiffs received of the defendant these notes, and executed to the defendant the following agreement:

“Received of William J. Orr seven mortgage notes. Four of said notes were given by David Veatch to William J. Orr, bearing date January 1, 1876; said four notes amounting to $1,400. The other three of said seven notes were given by Walter E. Thomas to William J. Orr, bearing date January 27, 1877; the last-named three notes amount to $300, with the interest now due. Said notes being placed in our hands as collaterals to secure to us the

[7 N.E. 196]

payment of a mortgage on a house and lot in the city of Connersville sold by William J. Orr to Keller & Uhl, said mortgage amounting to $800; also to secure the payment of an execution in favor of David Baker and against William J. Orr and William C. Moffitt, amounting to about $1,300; also to secure the payment of a mortgage given by William J. Orr to Francis M. Roots, dated October 26, 1877, for $2,000. It is mutually understood by and between said parties that said notes are first to be applied to the $2,000 mortgage, then the $800 mortgage, and last the $300 execution; and we further agree not to foreclose the $2,000 mortgage mentioned above for one year from the date of this receipt, provided the said William J. Orr shall keep the interest paid on said mortgage. Keller & Uhl.

January 23, 1879.”

It is further alleged that the plaintiffs received of Thomas, in payment of one of his notes, $120 on the twenty-eighth day of February, 1880; that on the twenty-eighth day of March, 1881, they received of Thomas, in payment of the other notes executed by him, $250; and that on the fourth day of January, 1882, they received of David Veatch, in payment of his notes, $1,000. The prayer of the answer is that the amount received by the appellants be credited on the note and mortgage described in the complaint.

These answers are unquestionably good. It is settled that an agreement, although in form a receipt, is valid and enforceable. If a creditor accepts collateral security, and agrees to apply it to a designated debt, he must perform his agreement. The appellees had a right to fix the terms upon which they would transfer the notes of Thomas and Veatch as collateral security; and the appellants, having accepted the notes on the terms proposed, are bound to apply the avails of the notes as they agreed to do. It is entirely immaterial whether the avails of the notes would pay all of the debts or not, for the appellants agreed to apply the avails to a designated debt, and they cannot escape from their contract. There is no ambiguity in the instrument evidencing the agreement of the parties, and extrinsic aid is needed to interpret its provisions.

The second paragraph of the appellants' reply attempts to avoid the answer by alleging that John Uhl, who signed it on behalf of Keller & Uhl, “was not very conversant with the English language,” and that the instrument does not embody the agreement of the parties as he understood it. Of this reply it is only...

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18 practice notes
  • In re Mills, Bankruptcy No. 86-62184
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • December 29, 1988
    ...Construction Company v. Chipman, 202 Ind. 434, 175 N.E. 132 (1931); Givan v. Masterson, 152 Ind. 127, 51 N.E. 237 (1898); Keller v. Orr, 106 Ind. 406, 7 N.E. 195 (1885); Robinson v. Glass, 94 Ind. 211 (1883), (negligence on the part of one who can read but does not read an instrument which ......
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Est., 35 N.E. 660; Bassett v. Miller, 8 Md., 551; Walford v. Powers, 85 Ind. 294; Soc. v. Brumfield, 102 Ind. 146; Kellar v. Orr, 106 Ind. 406; Polk v. Johnson, 65 N.E. 537; Steel v. Halladay, 25 P. 77; Ross v. Conwell, 34 N.E. 752; In re Mulligan's Est., 27 A. 398; 12 Ency. L. (2d Ed.), 12......
  • Weaver v. American Oil Co., No. 1271S350
    • United States
    • December 3, 1971
    ...Co. v. Chipman (1931), 202 Ind. 434, 175 N.E. 132; Givan v. Masterson (1898), 152 Ind. 127, 51 N.E. 237; Keller v. Orr (1886), 106 Ind. 406, 7 N.E. Page 153 Without regard to whether or not he was aware of its contents, a person will be relieved of his obligations under a contract under cir......
  • Becker v. MacDonald, No. 4-585A149
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1986
    ...Russell v. Drake (1916) 184 Ind. 623, 111 N.E. 186, reh. denied; Otis v. Gregory (1887), 111 Ind. 504, 13 N.E. 39; Keller v. Orr (1886), 106 Ind. 406, 7 N.E. From these authorities we conclude the equity court's authority is not without limitation. While one seeking equity must do equity, t......
  • Request a trial to view additional results
20 cases
  • In re Mills, Bankruptcy No. 86-62184
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Indiana
    • December 29, 1988
    ...Construction Company v. Chipman, 202 Ind. 434, 175 N.E. 132 (1931); Givan v. Masterson, 152 Ind. 127, 51 N.E. 237 (1898); Keller v. Orr, 106 Ind. 406, 7 N.E. 195 (1885); Robinson v. Glass, 94 Ind. 211 (1883), (negligence on the part of one who can read but does not read an instrument which ......
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Est., 35 N.E. 660; Bassett v. Miller, 8 Md., 551; Walford v. Powers, 85 Ind. 294; Soc. v. Brumfield, 102 Ind. 146; Kellar v. Orr, 106 Ind. 406; Polk v. Johnson, 65 N.E. 537; Steel v. Halladay, 25 P. 77; Ross v. Conwell, 34 N.E. 752; In re Mulligan's Est., 27 A. 398; 12 Ency. L. (2d Ed.), 12......
  • Weaver v. American Oil Co., No. 1271S350
    • United States
    • December 3, 1971
    ...Co. v. Chipman (1931), 202 Ind. 434, 175 N.E. 132; Givan v. Masterson (1898), 152 Ind. 127, 51 N.E. 237; Keller v. Orr (1886), 106 Ind. 406, 7 N.E. Page 153 Without regard to whether or not he was aware of its contents, a person will be relieved of his obligations under a contract under cir......
  • Becker v. MacDonald, No. 4-585A149
    • United States
    • Indiana Court of Appeals of Indiana
    • February 11, 1986
    ...Russell v. Drake (1916) 184 Ind. 623, 111 N.E. 186, reh. denied; Otis v. Gregory (1887), 111 Ind. 504, 13 N.E. 39; Keller v. Orr (1886), 106 Ind. 406, 7 N.E. From these authorities we conclude the equity court's authority is not without limitation. While one seeking equity must do equity, t......
  • Request a trial to view additional results

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