Kenney v. Wells
| Decision Date | 12 December 1899 |
| Docket Number | 2,966 |
| Citation | 55 N.E. 774,23 Ind.App. 490 |
| Parties | KENNEY, RECEIVER, v. WELLS ET AL |
| Court | Indiana Appellate Court |
From the Knox Circuit Court.
Affirmed.
W. H DeWolf and M. C. Johnson, for appellant.
L. A Meyer, W. A. Cullop and C. B. Kessinger, for appellees.
The appellant asks a reversal of the judgment rendered in this case in the court below for two reasons: (1) Because the court erred in overruling the demurrer of the appellant to each paragraph of the separate answers of the appellees; (2) because the court erred in overruling appellant's motion for a new trial.
The suit is upon a promissory note executed by one Thomas F. Jarrell and the appellees. The appellees alone defended. Jarrell was defaulted, but no judgment was rendered against him. The complaint alleges, in substance, that C. Aultman & Company is a corporation organized under the laws of Ohio, and that on December 18, 1893, in the Marion Circuit Court, William A. Lynch and Edward T. Kenney were appointed receivers of the assets of the corporation; that said Kenney qualified, but that said Lynch did not qualify; that, as such receiver, Kenney took possession of all the property of said corporation and is still acting as such receiver; that there came into his hands two promissory notes payable to said corporation, executed by the defendant, Thomas F. Jarrell, upon which payments had been made, and that afterwards in settlement of the balance due upon such notes, the defendants executed the note in suit, payable to the plaintiff by the style of C. Aultman & Company; that the note is due and unpaid, except the sum of $ 192.76, which has been paid. A copy of the note is filed with the complaint.
The appellant's demurrers to the amended second and third paragraphs of answer were overruled. The substance of the "amended second paragraph" is: that they executed the note in suit; that Jarrell was indebted to the plaintiff in the amount of two promissory notes, which notes were secured by a chattel mortgage, executed by Jarrell to C Aultman & Company, upon certain personal property, consisting of a separator, a truck, and stacker and fixtures belonging thereto, also one Star stacker complete, and one two-horse engine; that the first note secured by the mortgage was due and unpaid; the second note was not due, and that by the provisions of the mortgage the plaintiff was entitled to take possession of the property because of the default in the payment of the note past due; that appellees were requested and solicited by plaintiff to execute the note in suit, and that plaintiff agreed that if the appellees would execute the note he would waive his right to take possession of the mortgaged property and his right to foreclose the mortgage "upon the maturity of the note, not then due, in favor of these defendants, and until such time as these defendants should be able to reimburse themselves out of the proceeds of running the machine;" that appellees thereupon executed the note, and in consideration thereof appellant waived his right to take possession of the property and the lien of his mortgage upon the maturity of the second note, and defendants took possession of the property with the consent of Jarrell and the plaintiff, and operated the same; and that afterwards, and before the proceeds of the machine were sufficient to reimburse the appellees, appellant, without the consent of appell...
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