Kirkpatrick Grain Co. v. Farmers-Merchants State Bank of Darlington

• Decision Date: 30 March 1936
• Docket Number: No. 15064.,15064.
• Citation: 101 Ind.App. 673,200 N.E. 714
• Parties: KIRKPATRICK GRAIN CO. v. FARMERS-MERCHANTS STATE BANK OF DARLINGTON, IND., et al.
• Court: Indiana Appellate Court

101 Ind.App. 673

200 N.E. 714

KIRKPATRICK GRAIN CO.

v.FARMERS-MERCHANTS STATE BANK OF DARLINGTON, IND., et al.

No. 15064.

Appellate Court of Indiana, in Banc.

March 30, 1936.

Appeal from Montgomery Circuit Court; Edgar A. Rice, Judge.

Action by the Farmers-Merchants State Bank of Darlington, Indiana, against the Kirkpatrick Grain Company and another, wherein named defendant filed a demurrer. From an adverse judgment, named defendant appeals.

Affirmed.Chase Harding and Robt. B. Harding, both of Crawfordsville, for appellant.

Chas. Johnston, of Crawfordsville, for appellees.

WIECKING, Judge.

This was an action by appellee bank below against Kirkpatrick Grain Company and Zoy Branstetter for conversion of property mortgaged by Branstetter to the appellee bank. The amended complaint alleged the execution of a chattel mortgage by Branstetter on March 31, 1930, to secure a note of $2,700 dated March 1, 1930, and covering, among other things, the undivided one-half of all wheat and oats raised on certain real estate during that crop year by Branstetter, a tenant of one Halstead. A copy of the mortgage in the usual form showing its acknowledgment and recording was set out as an exhibit to the amended complaint. The pleading further alleged that during the summer of 1930, Branstetter unlawfully and without the consent of appellee bank had offered to sell and had sold certain wheat and oats covered by the mortgage to appellant. That appellant refused to surrender said grain or to make settlement with appellee bank for such mortgaged property sold to it. To this complaint appellant filed a demurrer, which was overruled. It then filed an answer in two paragraphs, the first general denial and the second affirmative matter. Appellee bank filed a motion to separate the second paragraph of answer into separate paragraphs, which motion was sustained, and appellant then filed its amended second, third, and fourth paragraphs of answer.

The amended second paragraph of answer alleged that Branstetter and the Halsteads were engaged in a joint venture, and that the grain delivered to the appellant was the property of such partnership; that the account in question was a debt of the joint venture and that all the merchandise going to make up the items in the account had been furnished at the special instance and request of the parties to the joint venture. It further alleged that appellant was ready and willing to pay the balance due to any party the court might direct. The third paragraph of answer attempted to set up an estoppel against the appellee bank. It alleges that Branstetter and the Halsteads were engaged in a joint enterprise; that each year the appellee bank had had a mortgage on the property of Branstetter and his share of the grain grown upon the farm in question; that each year appellant had furnished supplies for the farming operation and that each year appellee bank had permitted appellant to take out of the proceeds of the grain delivered to it the value of such supplies at the time of settlement; that each year appellee bank had called up appellant and asked appellant to make a settlement with appellee Branstetter and send the balance to the bank; that this continued course of action had established a custom, and appellee bank was now estopped to claim the amount deducted in the present year. The fourth paragraph of answer alleges a joint farm operation between appellee Branstetter and the Halsteads; that for many years appellee bank and Branstetter had been jointly interested in feeding stock; that appellee bank had a chattel mortgage each year similar to the one herein involved; that during the year 1930 the mortgage was for the sum of $2,700, and that during that year from the proceeds of the joint feeding operation and other funds of Branstetter, a large portion of the debt was paid to appellee bank, and that near the end of the year Branstetter and the bank held a sale of mortgaged property and all the property was either sold and applied to the debt or taken over by the bank. The answer further alleged that for many years, at the request of Branstetter and the bank, appellant had furnished supplies to Branstetter, and that as crops were marketed it was repaid from the proceeds, and that appellee bank participated in the settlement and repayment. That during the year 1930, the landlord Halstead had filed a landlord's lien against his tenant. That appellant had taken out the value of its account and stood ready to account for the balance to the person entitled, and that appellee bank had been fully repaid by proceeds of the farm operation and the proceeds of the crops to more than the said sum of $284.95.

Reply in general denial was filed by appellee bank to each paragraph of affirmative answer, and appellee Branstetter filed...