Landwerlen v. Wheeler

• Decision Date: 23 March 1886
• Citation: 106 Ind. 523,5 N.E. 888
• Parties: Landwerlen v. Wheeler, Trustee.
• Court: Indiana Supreme Court

106 Ind. 523

5 N.E. 888

Landwerlen

v.Wheeler, Trustee.¹

Supreme Court of Indiana.

Filed March 23, 1886.

Appeal from Shelby circuit court.

Glessner, Adams & Hackney, for appellant.

Adams & Michener, for appellee.

Zollars, J.

In July, 1877, at a meeting of the congregation of St. Vincent Catholic Church, it was determined that a new house in which to worship was needed, and that the money necessary to build it should be raised by subscriptions. Subsequently, appellee was appointed to collect, hold, and pay out for the benefit of the church, in the erection of such house, the money that might be thus raised. In pursuance of the meeting above mentioned, a paper was drawn up, and circulated for subscriptions. It is as follows:

“St. Vincent, August 1, 1877, Shelby County, Indiana.

We, the undersigned, promise to pay the following subscriptions for a new church in honor of St. Vincent de Paul, patron of the church and congregation. It is hoped that every member of the congregation will show the goodwill. and help to promote such a good and holy object, as a new church is very much needed. The subscription is to be paid in three payments. The first payment is to be made by the first of August, 1878; the second, August 1, 1879; and the third, August 1, 1880. The payments to be made to John Wheeler, Esq., treasurer.”

Appellant signed this paper, and set opposite his name “$200.” Quite a number had signed it before he did, and quite a number subsequently signed it, setting opposite their respective names different amounts. Upon the faith of the subscriptions, the church proceeded in the erection of the house, and contracted debts for material, etc. Appellant has paid no portion of the $200 set opposite his name, and refuses to pay it, in whole or in part.

The above are some of the facts stated in appellee's complaint. Appellant demurred to the complaint. The demurrer was overruled, and he accepted. He assigns that ruling as error. His contention is that the complaint shows upon its face that appellee was not a trustee of an express trust at the time the subscription paper was signed, because it is alleged that he was appointed as treasurer on the first day of September, 1877, and the paper is dated in August, 1877. It is alleged, however, that he signed the paper as it is, and that is admitted by the demurrer. Appellee is named in the paper as the treasurer, and the person to whom payments were to be made. It is not shown by any averment that appellant, or any other of the subscribers, signed the paper on the day of its date. It must be held, therefore, that when appellant signed the paper appellee was the duly-appointed treasurer to collect the amounts subscribed. The paper itself, and the averments of the complaint, show that appellee was to collect and hold the money in trust for the congregation, and hence he was the trustee of an express trust, and may maintain an action to collect the amounts subscribed, without joining the cestui que trust. Rev. St. 1881, § 252. See Dix v. Akers, 30 Ind. 431;Musselman v. Cravens, 47 Ind. 1;Wolcott v. Standley, 62 Ind. 198;Weaver v. Trustees of Wabash & E. Canal, 28 Ind. 112;Holmes v. Boyd, 90 Ind. 332;Watkins v. Eames, 9 Cush. 537.

Appellant further contends that the written instrument above set out, and upon which this suit was brought, is a joint contract, and that hence all of the other subscribers should be made defendants. It is a cardinal rule of construction that contracts shall be so interpreted as, if possible, to arrive at and carry out the intention of the contracting parties. In doing this, reference should be had to the words used, and they should, if possible, be given their literal and usual signification. But it is equally important that the contract shall be considered as a whole; and if, upon such consideration, the intention of the parties becomes apparent, it must prevail over the literal interpretation of detached words, phrases, and clauses. Bish. Cont. § 575; Irwin v. Opp, 3 N. E. Rep. 650, (present term;) 1 Wait, Act. & Def. 116. The contention that the contract here is joint, rests upon these words: “We, the undersigned, promise to pay the following subscriptions for a new church,” etc. These words, of themselves, are not sufficient to settle the interpretation that shall be given to the contract. As said by Mr. Addison: “When parties engage for the performance of distinct and several duties, mere words of pluralty, as ‘we bind ourselves,’ will not make the contract joint.” Add. Cont. (Amer. Ed. by Morgan,) 86. If the portion of the contract relied upon by appellant were, “We, the undersigned, promise to pay the following subscriptions set opposite our names,” there would be no room to doubt that the contract would be several, and that each subscriber, and he alone, would be liable for the amount set opposite his name. Connecticut & P. R. R. Co. v. Bailey, 24 Vt. 465;Erie & N. Y. C. R. Co. v. Patrick, 2 Abb. Dec. 72; S. C. 41^* N. Y. 256; 1 Woods, Rys. 57; Price v. Grand Rapids, etc., R. Co., 18 Ind. 137. In the case last above, the subscription sued upon was in these words: “We, the undersigned, promise to pay * * * $25 for each share of stock opposite each of our names,” etc. The words “opposite each of our names” constitute the only difference between that subscription and the one under consideration. With this difference, the promise is in the same terms, and is as much a joint promise as in the case before us. In that case it was said: “These stock subscriptions, though in form joint contracts, are intended to be and are to be treated as several, and each stockholder as liable simply for the amount opposite his own name,” etc.

In the case before us there are no statements as to the amounts opposite each name of the subscribers, but opposite each name are the amounts subscribed by the different subscribers. These amounts vary from $500 to $10, as each subscriber felt inclined to give. The paper and the manner of the subscriptions as clearly indicate the intention by all the parties that each subscriber should be liable, and only liable, for the amount by him subscribed, as if the words “opposite each of our names” had been used. The paper contains an exhortation to each individual member to assist, thus showing that whoever might subscribe would only be expected to pay the amount that he might put down opposite his name. When a person signed the paper, and put down opposite his name the amount subscribed, he just as plainly declared that that was the amount for which he was to be liable as if, in the body of the paper, it had been stated that each subscriber was to be liable for the amount opposite his name. See Erie & N. Y. C. R. Co. v. Patrick, supra. It would be doing violence to the manifest intention of the contracting parties, as plainly indicated by the paper, and the manner in which the subscriptions were made, to hold that the person who subscribed $10 is liable for the whole amount subscribed. We hold, therefore, that the court below did not err in overruling the demurrer to the complaint, and in striking out the answer in abatement setting up a non-joinder of parties defendant.

The fourth assigned error is, in substance, that the court below erred in sustaining a demurrer to the second paragraph of appellant's answer. In that paragraph appellant set up that appellee, as trustee, had not the legal right and capacity to maintain this action upon the subscription paper, for the reason that, at the time he (appellant) made his subscription thereon, appellee was not named therein as the payee thereof, and that his name as payee was subsequently inserted, without the knowledge or consent of appellant. The only argument in appellant's brief in support of this assigned error is as follows: “We think the fourth assignment of error is presented by the first and third causes of demurrer to the complaint. The argument made applies with equal force to the court's action in sustaining the demurrer * * * to the second paragraph of answer.” This does not fulfill the requirements of the rules of this court upon the subjects of briefs.

The first and third causes of demurrer to the complaint questioned the sufficiency of facts stated, and the right of appellee to maintain the action. The complaint is based upon the written subscription, which is perfect upon its face, appellee being named therein as the treasurer to whom payments were to be made. The answer under consideration alleges facts to show that after appellant made his subscription there was a change in the subscription paper, by the insertion of appellee's name as the payee. Hence the argument as to the sufficiency of the complaint,and the right of appellee to maintain the action as shown therein, is not, and cannot be regarded as, an argument in support of the answer, nor in support of the fourth assigned error. No reasons are stated, nor are authorities cited, in support of the answer. Neither are reasons stated, or authorities cited, in support of the fourth assigned error. It has been many times held by this court that, without such a brief as the rules require, alleged errors will not be passed upon. Liggett v. Firestone, 102 Ind. 514;Pratt v. Allen, 95 Ind. 404, and cases there cited.

We may remark, in passing, however, that the alleged error in sustaining the demurrer to the second paragraph of the answer, if an error, was apparently a harmless error, because the facts therein set up were admissible, and were admitted, so far as appellant could furnish proof, under the fourth paragraph of the answer, to which the demurrer was overruled. The rule is well settled that the erroneous sustaining of a demurrer to a good paragraph of an answer will be regarded as a harmless error if there is another paragraph under which the same facts may be...