Kerbaugh v. Nugent

• Decision Date: 09 June 1911
• Docket Number: No. 6,983.,6,983.
• Citation: 48 Ind.App. 43,95 N.E. 336
• Parties: KERBAUGH v. NUGENT et al.
• Court: Indiana Appellate Court

48 Ind.App. 43

95 N.E. 336

KERBAUGH

v.NUGENT et al.

No. 6,983.

Appellate Court of Indiana, Division No. 1.

June 9, 1911.

Appeal from Circuit Court, Boone County; S. R. Artman, Judge.

Action by Justus Kerbaugh against Thomas Nugent and others. Judgment for plaintiff for less than the relief demanded, and he appeals. Affirmed.

Darnell & Darnell and S. M. Ralston, for appellant. Terhune & Adney, for appellees.

HOTTEL, J.

Action by appellant against appellee on four promissory notes of $1,000 each, and to foreclose a mortgage given to secure the same. The mortgage contains a provision “that, upon the failure to pay any one of said notes at maturity, then all of said notes are to become due and collectible.” An alleged default in this provision gives rise to this suit. The complaint is in one paragraph, and contains the customary averments of a complaint on a series of notes and the foreclosure of mortgage given to secure the same, with the added averments that the mortgage in suit contained the provision above quoted, and that the appellee failed to pay the first note at maturity. An affirmative answer in one paragraph was filed, to which there was a reply in general denial. On the issues thus formed, there was a trial by the court and a special finding of facts and conclusions of law, to each of which appellant at the time excepted. Appellant filed a motion for new trial, which was overruled and exceptions saved, and thereupon the court rendered judgment for appellant in the sum of $1,248, and for appellee for costs, and that appellant “take nothing by his action on foreclosure of mortgage herein.”

The errors assigned and relied upon by appellant are: (1) The court erred in its first conclusion of law. (2) The court erred in its second conclusion of law. (3) The court erred in overruling appellant's motion for a new trial.

The answer filed by appellee admits the execution of the note and mortgage sued upon, but avers affirmative facts in the way of present ability and readiness to pay at the time and place fixed in the notes, and a tender before suit of the amount due on the first note and interest on the others. The averments of this answer upon the questions here involved are substantially the same as the facts found by the court in its special finding of facts hereinafter set out; and, inasmuch as no question as to the sufficiency of this answer is presented to this court by any assignment of error, we deem it unnecessary to extend this opinion by a copy of the same. In this connection, however, it should be observed that appellant's counsel are now insisting that the answer filed was only in abatement and not in bar of the action, and is bad because it purports to answer the entire complaint and in fact answers but a part. But, as above indicated, the insufficiency of this answer is not presented to this court by any assignment of error, and, in any event, the finding of facts being in substance the same as the averments of the answer, the same question arises on the exceptions to the conclusions of law on the facts specially found, and in such case the sufficiency of the pleading is not important. Scanlin v. Stewart et al., 138 Ind. 574, 575, 37 N. E. 401, 38 N. E. 401;Woodward et al. v. Mitchell et ux., 140 Ind. 406, 407, 408, 39 N. E. 437;Smith, Trustee, et al. v. Wells Mfg. Co., 148 Ind. 333, 335, 46 N. E. 1000:Lake Erie, etc., R. Co. v. Hoff, 25 Ind. App. 239, 242, 243, 56 N. E. 925.

A correct understanding of the questions presented by the appeal necessitates a statement of the substance of the special finding of facts and the conclusions of law thereon. The findings, after finding all the facts with reference to the ownership by appellant of certain flouring mill property in Boone county, its description and sale to appellee, and the execution by appellee of the notes in suit in payment therefor, and the execution of the mortgage in suit given to secure the same, the finding setting out in full a copy of each of the notes and mortgage, which copy contains the provision heretofore set out in this opinion, then proceeds, in substance, as follows: That said notes, with the accrued interest thereon, amount to the sum of $4,274.66, and a reasonable attorney's fee for their collection is $250; that by the terms of said note they were each payable at “the Citizens' State Bank at Jamestown, Indiana”; that said note, falling due on said 25th day of February, 1908, was at no time deposited at said bank; that appellant was absent from the town of Jamestown during all of said day until after 10 o'clock that night; that on said day the defendant had upon general deposit in said Citizens' State Bank, subject to check, over $1,250 in money, being more than enough to pay the note falling due on said day, with accrued interest thereon, and one year's interest upon each of the other three notes; that appellee on said day, and prior thereto and since has, resided in the city of Washington, Daviess county, Ind., and was conducting his milling business in the town of Jamestown by and through one Henry Turner, his agent, all of which was well known to the plaintiff on said day and long prior thereto; that one week prior to said day said Turner, as the agent of appellee, in a personal conversation with appellant, ascertained when the first note would be due and the amount that would be due as principal and interest on said note, and the interest on the other three notes, but did not at that time learn that said notes were payable at said bank; that prior to said day appellee had notified said bank that so much of his general deposit in said bank as was necessary for that purpose was to be applied to payment of plaintiff's note and interest, and at said time arranged to secure additional money from said bank with which to conduct his business, if necessary; that on said date said Turner, as agent of appellee, went into said bank and ascertained the amount of money that appellee then had on deposit in said bank, and informed the officers of said bank that there was sufficient money of appellee on deposit to pay the note and interest due appellant, and that he would have a surplus remaining; that appellee's place of business was near said bank, being three minutes' walk therefrom, and his business was immediately across the street and about 80 feet from appellant's residence; that during all of said day said Turner, as agent for appellee, kept a lookout for appellant in order to pay said note and interest, and was unable to find him; that said note was not presented at said bank either on the 25th of February or 26th day of February for payment; that during the 26th day of February, 1908, appellant remained at his house practically all day, and was not seen by said Turner; that about 5 o'clock, on the evening of said 26th, appellant went to the office of a lawyer in said town of Jamestown, and consulted him as to his rights in reference to said notes and mortgage; that on the 27th day of February, 1908, at about 11:30 o'clock a. m., plaintiff again went to the office of said lawyer, and in company with him went to said bank and presented said note falling due February 25, 1908, and demanded payment thereof; that the officers of said bank, who had been informed by the appellee and Henry Turner that said deposit of appellee was to be applied to the payment of appellant's said note and interest, then informed said appellant that the defendant had sufficient money on deposit to pay the note presented, but that they had no express authority or order directing them to make payment, but that defendant's agent, Henry Turner, was authorized to draw a check for the amount; that, immediately after receiving said information, the appellant and his attorney left said bank, and appellant thereupon directed his attorney to institute suit upon said notes and to foreclose said mortgage, and said attorney left Jamestown on the 27th of February, 1908, for the city of Lebanon to file suit on said notes; that upon appellant's return to his residence from the bank said Turner saw him, and told him that he desired to see him, but appellant excused himself saying that he would see Mr. Turner after dinner; that about 12:45 p. m. on said 27th appellant went to appellee's place of business immediately across the street from his residence, and saw said Turner, who at the time informed appellant that he desired to pay the note due February 25th, with the interest thereon and one year's interest on each of the other notes, and asked appellant if he would accept the money; that appellant informed said Turner that he would not; that said Turner thereupon importuned said appellant to accept the money and permit him to draw a check in payment of said note and interest, but appellant refused and told said Turner that he would not accept money or check; that, under the provisions of the mortgage, the notes were all due, and that the attorney had left Jamestown on the 12:40 car for Lebanon to file a suit upon said notes and to foreclose said mortgage; that on the same day, and prior to the filing of the answer herein, the defendant paid to the clerk of the Boone circuit court, as a tender of the principal of said note and the interest thereon until that day and one year's interest on each of the other notes, the sum of $1,248 in standard gold coin of the United States, which sum is still in the hands of the clerk of this court as a tender to the plaintiff in payment of the principal of said note and the interest thereon until the day of filing said answer, and one year's interest on each of the other notes; that on the 25th, 26th, and 27th days of February, 1908, and upon each of the same and during the whole of each of said days, the appellee had upon general deposit in said bank, subject to check, a sum of money in excess of $1,250, and...