Merica v. Burgett

• Decision Date: 03 November 1905
• Docket Number: No. 5,447.,5,447.
• Citation: 75 N.E. 1083,36 Ind.App. 453
• Parties: MERICA et al. v. BURGETT.
• Court: Indiana Appellate Court

36 Ind.App. 453

75 N.E. 1083

MERICA et al.

v.BURGETT.

No. 5,447.

Appellate Court of Indiana, Division No. 1.

Nov. 3, 1905.

Appeal from Circuit Court, White County; T. F. Palmer, Judge.

Action by John W. Burgett against Alex Merica and another. From a judgment for plaintiff, defendants appeal, and plaintiff assigns cross-errors. Reversed.Henry A. Steis and Spencer & Hammond, for appellants. Foltz & Spitler, E. B. Sellers, and C. W. Barker, for appellee.

MYERS, P. J.

This action was begun by appellee against appellants, and was tried in the court below upon an amended complaint in two paragraphs, and the issue joined by each of the appellants filing separate general denials. The facts were specially found and conclusions of law stated thereon, and judgment entered in favor of appellee for $500.

The facts as found by the court are, in substance, as follows:

That in December, 1899, appellants were engaged in the business of banking in the town of Francesville, in Pulaski county, Ind., as partners under the firm name and style of the “Bank of Francesville.” They owned a safe, set of books, office fixtures, and furniture, then used by them in said town in carrying on said business. Appellee at that time was a farmer living in Jasper county, Indiana. That during the said month of December appellants and appellee entered into the following contract:

“Articles of Agreement.”

“This article of agreement made and entered into between the firm of Merica & Bledsoe, of Francesville, Indiana, party of the first part, and John W. Burgett, of Pleasant Grove, Jasper county, Indiana, party of the second part, witnesseth: That for the consideration hereinafter mentioned the party of the first part sell to the party of the second part the safe, furniture, and fixtures of the Bank of Francesville, and agree to quit the banking business, March 5, 1900, and further agree to not start another bank in the town as long as said John W. Burgett owns the Bank of Francesville. Party of the second part agrees to pay party of the first part for said safe, furniture, and fixtures, etc., as follows: with four notes for one thousand ($1,000) dollars each dated March 5th, 1900, and due, respectively, in 6, 12, 18, and 24 months from date, with 7 per cent. interest, payable semiannually, with approved security, and it is further agreed between the parties to this contract that a failure of either party to fulfill this contract forfeits to the other party one thousand ($1,000) dollars.

“In witness whereof, we have this day signed this contract.

“Merica & Bledsoe,

“John W. Burgett.”

That appellants continued said business until March 5, 1900, “when, in pursuance of said written contract, the said Merica & Bledsoe turned over to said Burgett all of the property of said firm in said banking house, together with the cash then on hand and the notes which had been by them discounted. That the plaintiff on the 5th day of March, 1900, began and continued to carry on said Bank of Francesville and doing a banking business in said town and continued to own said Bank of Francesville until after the beginning of this suit. That prior to the 22d day of September, 1902, there was no other bank or persons doing a banking business in said town of Francesville. That the plaintiff on said March 5, 1900, paid the full amount of the purchase money for said contract agreed to be paid, and complied and performed fully all the conditions thereof which were to be by him performed. That on said 5th day of March, 1900, the said firm of Merica & Bledsoe dissolved, and the defendant Bledsoe has not since been engaged in the banking business, nor has he taken any part in starting any bank or banking institution in said town of Francesville. That on the 22d day of August, 1902, the defendant Merica agreed with one J. T. Beesley to take stock in and accept an employment as assistant cashier in a bank to be organized under the laws of the state of Indiana as a state bank, and to be known as the ‘State Bank of Francesville, Indiana.’ That afterward, about the 12th day of September, 1902, the defendant Merica subscribed for 12 shares of stock in the proposed State Bank, signed the article of association, and said defendant Merica became and was one of the incorporators of the said bank, subscribing as aforesaid and paying full for 12 shares of stock of $100 each, which he subscribed and took in his own name for his own use, and held the same as his own property and did so in pursuance of said agreement made between him and the said Beesley, by which he was so employed as assistant cashier and became a stockholder and one of the original incorporators in said new bank.” That on the 18th day of September, 1902, written articles of association were filed in the office of the Auditor of the state of Indiana, and signed by the appellant Alex Merica and others, stating the purpose of the organization to be the business of banking under the laws of the state of Indiana, designating the name of the association to be the “State Bank of Francesville,” and its location in the town of Francesville, county of Pulaski, and state of Indiana, where its operation of discounts and deposits are to be carried on, fixing its capital, etc. A charter was granted, and on September 22, 1902, the State Bank of Francesville began business, with Ab Whittaker as president and J. L. Beesley as cashier, and the appellant Merica assistant cashier. That the business of said bank has been ever since conducted in a building situated in said town of Francesville and across the street from appellee's place of business. That on September 22, 1902, said Merica entered upon the discharge of his duties as assistant cashier of said bank, and has continued so to do ever since. That he has given much of his time and influence to the promotion of the business of said State Bank, and has, since he began his duties of assistant cashier, solicited business for said bank. That upon the organization of said State Bank many of the depositors and patrons of appellee's bank immediately, and within a very short period thereafter, transferred their deposits and patronage from the appellee's bank to said State Bank, and have since continued to patronize the last-named bank. That at the time the contract was entered into between the said Beesley and Merica, and at the time the State Bank was organized, with said Beesley as cashier and the said Merica as assistant cashier, the said Beesley was unacquainted with the financial standing of the farmers and business men in that community. That Merica was experienced in the banking business in that community and was acquainted with the financial business of many of the persons who did business with appellee's bank. That the appellant Merica since the organization of the State Bank assisted in keeping the books of the bank, received deposits, issued drafts, bills of exchange, discounted paper, advised as to and approved all notes offered the bank for discount, and, together with Beesley, has conducted the business of said bank, and that he carries one of the keys to the room in which said bank does business, and assists in the custody and the care of the property of said bank. That on September 29, 1902, appellee, through his attorney, demanded of the appellant Merica the sum of $1,000, mentioned in said written contract. That Merica refused to pay said sum, and during the first week in October, 1902, disposed of his stock in said Bank of Francesville to one Carl Fox, and has not since had any stock in said bank in his own name, but has continued in said employment and active participation in the business of said bank ever since.

Upon these findings of fact a conclusion of law was stated as follows:

“That there is due and unpaid to plaintiff from the defendants, on account of the cause of action averred in the complaint, the sum of $500, and that plaintiff is entitled to re-recover judgment for that amount, to wit, $500, from defendants.”

Appellant Merica and appellee each separately excepted to the conclusion of law. Appellee then, in writing, moved the court to restate its conclusions of law, so as to conclude there was due appellee $1,000. This motion was overruled and appellee excepted, and the court thereupon rendered judgment. Appellant Merica in this court presents the single error “that the court erred in its conclusions of law on the findings.” Appellee assigns cross-errors: (1) The court erred in its conclusions of law on the findings. (2) The court erred in overruling appellee's motion to restate its conclusions of law, so as to render judgment in favor of appellee for $1,000.

The second cross-error presents no question. The motion upon which it is based is not recognized by our Code of Procedure. Maynard v. Waidlich, 156 Ind. 562, 60 N. E. 348;Wolverton v. Wolverton, 163 Ind. 26, 71 N. E. 123;School Town etc., v. Maumee School Township, 28 Ind. App. 120, 62 N. E. 282.

The remaining assignments of error present two and the same questions, and will be considered together.

1. Do the special findings of fact show a breach of the contract on the part of appellants? The special findings show, and there seems to be no contention but that appellee performed his part of the contract to the letter, so our inquiry is to be directed to the obligations assumed thereunder by appellants. The rights of parties, plainly set forth in a contract, are not to be extended or lessened by construction; but, if its language be ambiguous, uncertain, or indefinite, then the court will look to the nature of the instrument and the conditions under which it was made, the situation of the parties, the nature of their business, and the interests to be protected, not for the purpose of applying it, but for the purpose of effectuating their intention. Diamond Plate Glass Co. v. Tennell, 22 Ind. App. 132, 52 N. E. 168;Consolidated Coal, etc., Co. v. Mercer, 16 Ind. App. 504, 44 N. E. 1005;...