Marks v. Box

• Decision Date: 07 November 1913
• Docket Number: 8,031
• Citation: 103 N.E. 27,54 Ind.App. 487
• Parties: MARKS, ADMINISTRATOR, v. BOX ET AL
• Court: Indiana Appellate Court

103 N.E. 27

54 Ind.App. 487

MARKS, ADMINISTRATOR, v. BOX ET AL

No. 8,031

Court of Appeals of Indiana

November 7, 1913

From Tippecanoe Circuit Court; James P. Wason, Special Judge.

Proceeding on a claim by the American National Bank against the estate of Jacob F. Marks, deceased, based on a note signed by decedent and Nicholas W. Box. The claim, having been paid in part and disallowed in part by the administrator of decedent's estate, was transferred to the issue docket for trial. From a judgment adverse to the estate, the administrator appeals.

Reversed.

Haywood & Burnett and Byron W. Langdon, for appellant.

Kumler & Gaylord and Edgar D. Rudolph, for appellee.

OPINION

CALDWELL, J.

For a number of years prior to February , 1908, appellant's decedent, Jacob F. Marks, and appellee, Nicholas W. Box, were residents of Lafayette, Indiana, and each was a stockholder of the Muncie Gas, Light and Fuel Company of Muncie, Indiana. Marks was an accommodation endorser on a note of said gas company for $ 5,000, dated September 14, 1903, payable to and held by Taylor's Bank. On January 16, 1904, Marks drew his individual check to said bank for $ 1,100 in part payment of said note, leaving a balance of $ 3,900 thereof unpaid. February 18, 1904, Marks and Box executed their ninety day note to the First National Bank of Lafayette, in the sum of $ 3,900, the former's name appearing first on the note which note was renewed by the execution of a new note in said sum May 21, 1904, and again on August 22, 1904, which last note matured November 23, 1904, and which Marks paid December 6, 1904, by his individual check in the sum of $ 3,968.90, on the American National Bank of Lafayette in favor of Frank W Spencer, cashier of said First National Bank. On said December 6, 1904, Marks and Box executed their note to said American National Bank for $ 4,120, running six months, with interest at 8 per cent from maturity. This note was signed by Marks and Box, Marks' name appearing first on the note. The proceeds of this note were credited to Marks' individual account at said American National Bank. On June 6, 1905, Marks and Box renewed said note by the execution of a new note maturing December 6, 1905, at which time said last named note was renewed by the execution of the note involved in this action. Said note in suit bears date of December 6, 1905, and is in the sum of $ 4,120, running six months, payable to said American National Bank, with 8 per cent interest from maturity, and signed as follows: "J. F. Marks, N.W. Box, Security."

The controversy in this action was whether Marks and Box were comakers of said note as principals, or the latter was surety for the former. The evidence does not indicate that the term "security" or any like term was appended to Box's name, as it appeared on any of said notes other than the one involved in this action, but on the contrary, there was some evidence to the effect that no qualifying term followed Box's name on any of said other notes. There was no satisfactory evidence that Marks at any time knew that said term "security" followed Box's signature to the note in suit. It is appellant's theory that in February, 1904, both Marks and Box, believing that the paper of said gas company was good, and desiring, as stockholders, to promote its interests, took up said note on which Marks was endorser as aforesaid, and to procure the funds to do so, executed the first of said $ 3,900 notes as comakers and principals, as aforesaid, and that they sustained a like relation to each of the succeeding notes, including the note involved in this action. Appellee, however, contends that his relation to each of said notes, including the one in suit, was as surety for Marks. Marks died on said -- day of February, 1908, soon after which time his administrator found among his papers said $ 5,000 note, on which Marks was accommodation endorser as aforesaid. This note had pinned to it, pencil memoranda in Marks' handwriting, and signed by him, to the effect that he and Box owned said note, and that Marks' interest therein was $ 3,050 and Box's interest $ 1,950. After the decease of Marks, said American National Bank, as the holder and owner of the note in suit, filed it as a claim against Marks' estate. The appellant, as administrator, allowed and paid only the one-half of the amount due on the note on the theory that Box, as between him and said estate, was primarily liable for the other half by reason of being comaker and principal as aforesaid. In due course, said claim was transferred to the issue docket of the Tippecanoe Circuit Court for trial, in which court, on appellant's application, appellee Box was made a defendant. Pleadings were filed, presenting the issue of whether Box's relation to said note was as surety or as coprincipal. Trial by the court, without a jury, resulted in a finding and judgment in favor of said American National Bank, against both appellant and appellee for the full balance due on said note, and that said Jacob F. Marks was principal and said appellee Box was surety, with an order that the property of the estate be first exhausted before levying on the property of appellee. The appellant appeals from said judgment, assigning as error the overruling of his motion for a new trial.

The causes assigned for a new trial, and not waived in this court, pertain to the admission and exclusion of evidence. The evidence, aside from admissions, was largely circumstantial.

Complaint is made that the court refused to permit appellant, while on the stand as a witness in his own behalf, to testify that he knew of his own knowledge that his decedent and Box were both interested as stockholders in said Muncie Gas, Light and Fuel Company. The question by which said evidence was sought was leading and suggestive, and called for the witness's conclusion, and the court's action was proper.

Said check drawn by Marks, under date of December 6, 1904, on said American National Bank, in favor of Spencer, cashier of said First National Bank, had a pencil memorandum on it when it was produced at the trial, as follows: "O. K. take up note for Muncie Gas, Light and Fuel Co." By the fifth cause for a new trial, error is predicated on the refusal of the court to permit said check, including said pencil memorandum, to be used in evidence. By the twelfth cause for a new trial, error is predicated on the exclusion of the memorandum alone. The record discloses that appellant offered in evidence the check "including the pencil memorandum." Over appellee's objection, the court admitted the check, but excluded the memorandum, and appellant reserved an exception. Appellant then offered the check, without the memorandum, and it was admitted. Subsequently, appellant offered in evidence the memorandum alone, but it was excluded, and no exception reserved. It is apparent that the twelfth assignment of error in the motion for a new trial, predicated on the separate offer and exclusion of the memorandum, presents no question, for the reason that no exception was reserved. The fifth assignment challenges the ruling in excluding both the check and memorandum, but as we have said, only the memorandum was excluded. Under such a state of the record, the fifth assignment presents no question. McClain v. Jessup (1881), 76 Ind. 120; Cleland v. Applegate (1893), 8 Ind.App. 499, 501, 35 N.E. 1108; Gray v. Elzroth (1894), 10 Ind.App. 587, 593, 37 N.E. 551, 53 Am. St. 400; Sievers v. Peters, etc., Lumber Co. (1898), 151 Ind. 642, 664, 50 N.E. 877, 52 N.E. 399; Indiana, etc., R. Co. v. Snyder (1894), 140 Ind. 647, 649, 39 N.E. 912; Mock v. City of Muncie (1893), 9 Ind.App. 536, 542, 37 N.E. 281; Logansport, etc., Gas Co. v. Coate (1902), 29 Ind.App. 299, 302, 64 N.E. 638.

But if it should be conceded that the motion for a new trial properly presents the question of the exclusion of the memorandum alone, still the court committed no error in excluding it. The evidence showed, and it was conceded that appellant's decedent drew said check and that it was used for the purpose of taking up the last of said three notes each of which was in the sum of $ 3,900. As we have said, the relation that appellee bore to said notes was the only question in controversy. Appellant contended that the first of said notes was executed by Marks and Box as coprincipals to procure money to be used, and which was used, by them in the joint venture of taking up said $ 5,000 gas company note, on which there was a balance unpaid of $ 3,900, as aforesaid. Appellee contended that he was surety on said note, and while he admitted that he arranged for the loan, he claimed to have done so in behalf of Marks. Box did not undertake to explain the purpose for which said money was borrowed or for which it was used. Appellant insists that said memorandum, if in evidence, would tend to connect the transaction with said gas company note. In order that such memorandum may be shown to have such a tendency, appellant is compelled to indulge a series of inferences, each dependent on the preceding one. It is necessary to infer that Box ascertained the amount due on said note that was paid by said check, and that he caused said check to be drawn, and to be delivered to Marks for signature, and that Marks thereupon wrote said memorandum on the check at the time when he signed the latter. These inferences must be indulged, although there is no claim that there was evidence to support them, or to establish any facts from which they may be deduced. The evidence showed that the body of the check was in the handwriting of the assistant cashier of the First National Bank. The signature and pencil memorandum were in the handwriting of Marks, and said check was found among his papers after his decease. ...