Lupton v. Taylor

• Decision Date: 10 October 1906
• Docket Number: No. 5,813.,5,813.
• Citation: 39 Ind.App. 412,78 N.E. 689
• Parties: LUPTON et al. v. TAYLOR.
• Court: Indiana Appellate Court

39 Ind.App. 412

78 N.E. 689

LUPTON et al.

v.TAYLOR.

No. 5,813.¹

Appellate Court of Indiana, Division No. 1.

Oct. 10, 1906.

Appeal from Circuit Court, Jay County; Jno. F. LaFollette, Judge.

Action by David T. Taylor against Ambrose G. Lupton and another. From a judgment for plaintiff, defendants appeal. Reversed.

Smith & Moran, for appellants. R. H. Hartford, for appellee.

MYERS, J.

In the court below a judgment for $564.10 was rendered against appellants and in favor of appellee on account of attorneys' fees for services rend ered appellants, as executors, in the settlement of a certain estate. The averments of the complaint show that appellants, as executors, employed appellee as attorney to advise and assist them in the settlement of their trust; that in making a final report in settlement of said trust, and at their request, appellee receipted to them, as executors, for $549.50, as and for legal services rendered such executors, under his said employment; that as executors appellants took credit in their said report for the amount covered by said receipt; that said report was in all things approved, and said executors finally discharged; that appellee executed said receipt because of a promise by appellants to him made that he should have a check the next day for the sum of money mentioned in said receipt; that appellants, as executors, or otherwise, have failed and refused to pay appellee said sum or send him a check for the same. Appellants answered in five paragraphs: (1) In denial, (2) payment, (3) partial payment, (4) want of consideration, (5) set-off. Appellee's demurrer and motion to strike out the paragraph of set-off were each overruled. By proper pleadings the cause was put at issue, tried by the court, special findings of fact and conclusions of law submitted. Judgment, motion for a new trial overruled, and this ruling is the only error assigned for a reversal.

The grounds for a new trial are that the findings of the court are not sustained by sufficient evidence and are contrary to law. Also that the assessment of the amount of recovery is erroneous, being too large. Appellee has assigned cross-errors, based upon the rulings of the court in overruling his demurrer, and motion to strike out the answer of set-off. The purpose of the cross-errors, as stated by appellee, is to affirm the judgment, and not to reverse it. He insists that the pleading is bad (1) because it shows a want of mutuality, and (2) because upon its face it shows that appellants are not the unconditional owners of the debt pleaded as a set-off. Evidence tending to support the set-off pleaded was introduced over appellee's objection. It is the theory of appellee that if the averments of the answer of set-off were not sufficient to withstand a demurrer, or if technically sufficient for that purpose, but an improper pleading, which should have been stricken out, then the evidence admitted in its support over his objection was erroneously admitted,and, a right conclusion being reached, the error assigned by appellants would therefore be unavailing. Clark v. Schromeyer, 23 Ind. App. 565, 55 N. E. 785. It has been judicially determined that a defendant pleading a set-off must exhibit facts showing a cause of action in his favor against the plaintiff, or it will not be sufficient to withstand a demurrer for want of facts, for the reason that such pleading, properly speaking, is a cross-action, and must stand alone. Boil v. Simms, 60 Ind. 162;Wills v. Browning, 96 Ind. 149;Johnson v. Tyler, 1 Ind. App. 387, 27 N. E. 643;Davis & Rankin, etc., Mfg. Co. v. Booth, 10 Ind. App. 364, 37 N. E. 818.

Meeting the objections urged by appellee, the set-off pleaded, in short, discloses the following facts: In June, 1899, appellants qualified as executors of a certain estate, and as such executors employed a firm of attorneys, of which firm appellee was a member, to advise and assist them in the settlement of said estate; that said attorneys accepted said employment and assisted appellants in the management of their said trust, and in the collection of claims due said trust, and while so acting, and on behalf of said estate, and before the final settlement thereof, and during the existence of said firm now dissolved, one of its members collected on account of a certain judgment in favor of said estate $175.01, and took credit for the same on their fees; that appellants accounted to said estate for said sum of money, although no part of the same has ever been paid to them, either as executors or otherwise; that, in the adjustment and settlement of the fees of said firm, appellee upon demand refused to allow or account for the money so collected and retained as aforesaid. Appellants also claimed an additional credit of $50, money paid to appellee on October 28, 1899, and for which no credit is given; that each of said sums of money are due and unpaid. Under the facts pleaded in the answer of set-off, the contract of employment was that of the firm of which appellee was a member, and ended with the settlement of the estate. Ganzer v. Schiffbauer, 40 Neb. 633, 638, 59 N. W. 98. And the responsibility to account for the money collected by one member of the firm rested alike on each individual member therof. Weeks on Attys. § 244; Cook & Lamkin v. Bloodgood, 7 Ala. 683. No accounting has been made, and appellee is prosecuting an action individually to collect a fee, which, under the averments of the answer, belongs to his law firm. Appellants, as executors; under the facts in the answer were bound to account for this money. This they did, and the payment thereof subrogated them as individuals to all rights theretofore existing in favor of the trust estate. Davis v. Schlemmer, Adm'r, 150 Ind. 472, 478, 50 N. E. 373, and authorities there cited. At the time of the execution of the receipt mentioned in the complaint, appellants were acting in a fiduciary capacity, and had no power or authority to deplete the trust funds in their hands by paying more than was actually due appellee. Assuming that they did promise to pay appellee $549.50, yet, if upon balancing the account this amount was found to be in excess of the correct amount due, there would be no consideration for the promise as to such excess, and in that regard would be unenforceable. If this were an action in...