Lowe v. Turpie

• Decision Date: 15 May 1896
• Citation: 44 N.E. 25,147 Ind. 652
• Parties: LOWE v. TURPIE et al.
• Court: Indiana Supreme Court

147 Ind. 652

44 N.E. 25

LOWE

v.TURPIE et al.¹

Supreme Court of Indiana.

May 15, 1896.

Appeal from circuit court, Cass county; J. S. Frazer, Special Judge.

Action by James H. Turpie and others against Hugh Lowe for breach of contract. From the judgment rendered, defendant appeals. Reversed.Edwin P. Hammond, Charles B. Stuart, William V. Stuart, S. P. Thompson, and R. P. Davidson, for appellant. Walker & McClintic, J. H. Gould, and Elliott & Elliott, for appellees.

MONKS, J.

On February 18, 1886, appellees James H. and William Turpie commenced an action against appellant in the White circuit court. The complaint was in three paragraphs, to each of which the court sustained a demurrer for want of facts. Judgment was thereupon rendered in favor of this appellant, which on appeal in this court was reversed, and the court below directed to overrule the demurrer to the complaint. Turpie v. Lowe, 114 Ind. 37, 15 N. E. 834. After the return of said cause to the court below the demurrer was overruled as directed. About the time of the commencement of said action by the Turpies in the White circuit court, in February, 1886, two other actions were commenced in the said court against appellant, growing out of the same alleged transactions set up in the action of the Turpies,-one by appellee Cornelius M. Horner, and one by appellees Emma J. and Mary F. Turpie, wives of the said James H. and William Turpie. These three suits were pending in 1889, and were sent, on change of venue, to the Cass circuit court. In January, 1890, by agreement, the three causes were consolidated, and the court ordered that George T. Jones and others be made parties defendant. Afterwards, in April, 1890, James H. and William Turpie filed an amended complaint, in five paragraphs. The second paragraph was stricken out on motion. Appellant demurred to each of the remaining paragraphs of the complaint, for want of facts, which demurrer was overruled. To this complaint appellant filed an answer. Appellees Emma J. and Mary F. Turpie in July, 1890, filed their amended complaint, asking damages against appellant, which he answered by general denial. George T. Jones also filed a counterclaim asking judgment against appellant, on which issue was joined. The cause was submitted to the court, and at request of appellant a special finding was made, and conclusions of law stated thereon against appellant, to each of which he at the time saved an exception. Upon the findings and conclusions of law, the court on February 5, 1891, rendered judgment against appellant, in favor of James H. and William Turpie, for $19,775; in favor of appellees Emma J. and Mary F. Turpie, in the sum of $10,000; in favor of appellee Horner, in the sum of $3,297; and in favor of appellee Jones, in the sum of $800. From these judgments, appellant appealed to this court, and perfected a term-time appeal, under section 638, Rev. St. 1881 (section 650, Rev. St. 1894). Afterwards, in November, 1891, by leave of court, appellant entered upon the transcript an amended assignment of errors, adding the names of additional personsas appellees, after which a joinder in error was endorsed upon the record, and signed by attorneys for appellees. This, under rule 8 of this court (27 N. E. iv.), was an appearance, and no notice to appellees was required. See Elliott, App. Proc. §§ 404-406.

But it is claimed by appellees that by the additional transcript filed May 21, 1892, attempting to bring up certain reserved questions of law, an appeal was attempted to be taken under section 630, Rev. St. 1881 (section 642, Rev. St. 1894), and this was an abandonment of the first appeal. The transscript filed May 21, 1892, consisted of a bill of exceptions purporting to contain a part of the evidence given in the cause, and matter supposed to be necessary to present certain reserved questions of law, and was brought into this court, as a part of the record, by a writ of certiorari issued in said cause on application of appellant. It is not, therefore, a separate or independent appeal, but a part of the record in this cause, and is not an abandonment of the term-time appeal. Whether that part of the record so brought into this court presents any question, or whether an appeal may be taken under both of said sections of the Code, we need not, and do not, determine.

It is claimed by appellant that the court erred in overruling the demurrer to the first, third, and fourth paragraphs of the amended complaint of James H. and William Turpie. This court held on the former appeal (Turpie v. Lowe, 114 Ind. 56-60, 15 N. E. 834) that the part of the complaint which alleged a sale and conveyance to appellant of real estate in Ohio, and a promise to pay the purchase money, stated a good cause of action. An amended complaint has since been filed, but the allegations concerning the sale of the Ohio real estate are substantially the same in each paragraph of the amended complaint as in the third paragraph of the original complaint. There was therefore no error in overruling the demurrer to each paragraph of the amended complaint of James H. and William Turpie.

Many questions concerning the sufficiency of the different pleadings, and the admissibility of evidence, are discussed by counsel; but, as the controlling questions are also presented by the exceptions to the conclusions of law, we will consider them in that connection. The special finding of facts, and the conclusions of law stated thereon, so far as necessary to the determination of this cause, are as follows:

Appellees James H. and William Turpie were on December 3, 1885, and still are, partners in business as traders in real estate, and were, as such partners, the owners, as tenants in common, of real estate in the counties of White, Jasper, and Starke, in Indiana, and in the counties of Franklin, Union, and Delaware, in the state of Ohio, all of which is described in the finding, and the value of each tract stated. A part of said real estate was held by said Turpies in fee simple. As to a part, they held the equitable title, under contracts of purchase. Part of said real estate was held in the names of others, as trustees for the Turpies. On said day there were existing and valid judgments against the Turpies, in favor of divers persons, rendered by the White circuit court, the Carroll circuit court, of Indiana, and other courts in said state, taxes due and unpaid, ditch assessments, and mortgages, amounting in the aggregate to about $15,000. That on or before December 3, 1885, the Turpies owned in fee simple the undivided four-fifths of a farm of 324 acres in Delaware county, Ohio, known as the Starke or Wagner farm, which farm was of the value of $17,820. That the other one-fifth of said farm was owned by George T. Jones, one of the appellees. That there were two mortgages on said farm,-one in favor of the Michigan Mutual Insurance Company, upon 283 acres of said farm, for $10,000, and one upon the remaining 41 acres of said farm, to one Starke, which, with accrued interest, amounted at said date to about $1,160. That on the same day appellant was the owner in fee of two one-acre lots in J. C. Reynolds' Third addition to the town of Monticello, Ind., equivalent in size to 10 ordinary town lots, and was also the owner in fee of the N. E. 1/4 of the N. W. 1/4 of section 16, township 28 N., of range 4 W., in said county, known as the “Nutter Forty Acres,” which said lots in Monticello were worth $500, and which said 40-acre tract was worth $600. That said Turpies were financially embarrassed, and wholly unable to raise the money to meet their matured and maturing liabilities. That the property held by them as aforesaid was of great value, but so heavily incumbered by liens, some of which were overdue, and others soon to mature, that all said property was in great danger of being sacrificed for less than its real value. And said appellant was a man of large financial ability and credit, and the owner of a large amount of unincumbered real estate and personal property. That he had a large amount of ready money and other assets, and was abundantly able to fulfill the contract hereinafter named. That on said 3d day of December, 1885, said Turpies, in the name of said William Turpie, entered into an agreement with said appellant, in writing, respecting the said Starke farm, as follows:

“December 3rd, 1885. This is to certify that William Turpie, of the first part, and Hugh Lowe, of the second part, have this day made a trade for a farm in Delaware county, in the state of Ohio, known as the ‘James Starke Farm,’ on Starke's Corners; the undivided one-half ( 1/2) of said three hundred and twenty-four (324) acres to belong to Hugh Lowe, the other one-half ( 1/2) to belong to William Turpie. Hugh Lowe is to assume the one-half ( 1/2), twelve thousand three hundred ($12,300) dollars, and William Turpie the other one-half ( 1/2). Hugh Lowe to have deed for the whole 324 acres for the present time. The following described property and stock on said farm is to be held jointly: Seven head of horses; 1 mule; 29 head of cattle shipped from White county, Indiana; 4 cows; 1 heifer; 2 buggies that were already on farm; 13 head of cattle bought of Dan Hunt; 110 sheep; all harness and farm implements on farm; buggies and wagons; all wheat in the ground on the farm; and all grain, hay, or feed on the farm; and (1) one lot on corner of Woodruff and High streets. Lowe is to have one-half ( 1/2) interest in said lots, and the balance of the G. A. Wagner lumber is to be divided equally by Lowe paying freight to Columbus, Ohio. Turpie is to make one hundred ($100.00) dollars up in trade to Lowe. Wm. Turpie. Hugh Lowe.”

“December 3rd, 1885. This is to certify that Hugh Lowe, of the first part, deeds, or causes to be deeded, to William Turpie, at his option, the following described property: 10 lots in J. C. Reynolds' addition to the town of Monticello, Indiana; 40 acres,...