McDonald v. Huestis

• Decision Date: 01 May 1891
• Docket Number: 123
• Parties: McDONALD v. HUESTIS ET AL
• Court: Indiana Appellate Court

27 N.E. 509

1 Ind.App. 275

McDONALD v. HUESTIS ET AL

No. 123

Court of Appeals of Indiana

May 1, 1891

From the Allen Superior Court.

Judgment affirmed, with costs.

R. C Bell and S. R. Morris, for appellant.

H Colerick and W. S. Oppenheim, for appellees.

OPINION

NEW J.

This was an action by the appellees, Huestis and Hamilton, against the appellant and one Marion A. Webb.

The complaint was on five promissory notes, each of date May 2, 1887, the first due in sixteen months, the others at successive dates thereafter, thirty days apart, all with 7 per cent. interest from date until paid, with attorney's fees, executed by the appellant and said Webb to the appellees.

The appellant answered, separately, for himself as to so much of the complaint as sought to recover interest and attorney's fees.

It is alleged in the answer that the notes sued on were of a series of twenty notes, given at the same time, for fifty dollars each, wherein said Webb was principal and the appellant surety. That as a part of the same transaction in which the notes were given, and to induce the appellant to sign the same as surety, the appellees executed to the appellant a writing as follows:

"FORT WAYNE, May 2d, 1887.

"This memoranda is to show that upon the twenty notes this day executed to us by M. A. Webb and Ronald T. McDonald, as his surety, McDonald shall not be bound to us for interest, but for the principal alone. Said notes being for fifty dollars each, and due in successive dates of thirty days apart. HUESTIS & HAMILTON.

"By MONTGOMERY HAMILTON."

A reply was filed to the answer, and a demurrer thereto overruled and exceptions taken.

At the request of the appellant, the court made a special finding of facts, as follows:

"1. That the defendants executed and delivered the several notes herein sued upon, and the same were signed by said McDonald as surety for his co-defendant Webb, and no other consideration; that said notes are due and wholly unpaid.

"2. That contemporaneously with the execution of said notes, and as part of such transaction, the said plaintiffs executed and delivered to said McDonald, to induce him to sign said notes as surety, their agreement in writing, which is in the words and figures following: [Here follows the agreement contained in the answer and already given.]

"3. That the reasonable attorney's fees for bringing suit on said notes, are of the value and worth of ten per cent. of the principal and interest now due thereon.

"4. That the amount now due on said notes, including interest at seven per cent. from the date thereof, is two hundred and eighty-five dollars and ninety-seven cents, and the attorney's fee for the collection of the same is worth twenty-eight dollars and fifty-nine cents, making in all the sum of three hundred and fourteen dollars and fifty-six cents.

"5. That the amount now due on said notes, including interest at six per cent. from the maturity of each note to the present time, is two hundred and fifty-eight dollars and thirty-three cents, and the attorney's fee for the collection of the same is worth the sum of thirty-five dollars and eighty-three cents, making in all the sum of two hundred and eighty-four dollars and sixteen cents."

Upon the foregoing facts conclusions of law are stated by the court as follows:

"1. Plaintiffs are entitled to recover judgment against said defendant, Marion A. Webb, as principal, the sum of three hundred and fourteen dollars and fifty-six cents, without any relief from valuation or appraisement laws.

"2. The plaintiffs are entitled to recover judgment against the defendant, Ronald T. McDonald, as surety for said Webb, the principal sum of two hundred and fifty dollars, with six per cent. interest on each note from the date of its maturity, and the further sum of twenty-five dollars and eighty-three cents attorney's fee, making in all the sum of two hundred and eighty-four dollars and sixteen cents, without any relief from valuation or appraisement laws."

To the conclusions of law the appellant, McDonald, excepted. Webb, the principal, declined to join in the appeal.

Judgment was rendered upon the facts specially found, in conformity with the conclusions of law.

The appellant questions, by proper assignment of error, the conclusions of law stated by the court, so far as he is made thereby liable for interest on the notes sued on after their maturity and attorney's fees.

The notes sued on and the "memoranda" having been executed at the same time, and in relation to the same subject-matter, as shown by the special finding of the court, should be construed together. It is beyond dispute that the notes and "memoranda," so far as they affect the appellant, must be considered as forming one contract. Counsel in the case do not differ on that point, nor is there any controversy between them about the execution of the notes, and the facts found by the court.

We do not think the court erred in its conclusions of law, as to the liability of the appellant.

The liability of the appellant must be measured by the terms of his...