Metzger v. The Franklin Bank
| Decision Date | 19 June 1889 |
| Docket Number | 12,695 |
| Citation | 21 N.E. 973,119 Ind. 359 |
| Parties | Metzger v. The Franklin Bank |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
The judgment is affirmed, with costs.
F Winter, for appellant.
G. M Overstreet and A. B. Hunter, for appellee.
This is an action to recover a sum of money which the appellant claims is justly due him from the appellee.
From the examination which we have made of the complaint we are inclined to the opinion that it does not state a cause of action, for the following reasons: 1. If fraud is to be regarded as the gravamen of the action, the facts alleged do not constitute a fraud. 2. If negligence is to be regarded as the foundation of the action, there is no negation of contributory negligence alleged. 3. If the action is to be regarded as resting on a breach of contract, no consideration is alleged. When the action counts upon a contract which rests in parol, before the plaintiff can recover he must allege and prove a consideration. Higham v Harris, 108 Ind. 246, 8 N.E. 255; Wheeler v. Hawkins, 101 Ind. 486.
The theory of the action seems to be the breach of a parol contract. Unless the appellee undertook to perform, as charged in the complaint, for a consideration of value, we are inclined to the opinion that the appellant must ground his action upon negligence or fraud. But we need not pursue the complaint further, as no question as to its sufficiency is presented by this appeal.
The answer of the appellant was but a general denial; the case was tried by the court, and a special finding made, the law being found favorably to the appellee; the appellant filed a motion for a new trial, which was overruled by the court, and, over an exception, judgment was rendered for the appellee. The errors assigned are two in number: 1. The court erred in overruling the motion for a new trial. 2. The court erred in its conclusions of law.
There are three reasons assigned for a new trial: 1. The court erred in receiving and excluding certain evidence. 2. The finding made by the court is not sustained by sufficient evidence. 3. The finding is contrary to law. The action of the court in excluding evidence is not discussed by counsel for the appellant; the first reason therefore is waived that far.
There are five questions and answers, to which the appellant objected, embraced in the first reason assigned in the motion for a new trial. The objections are not available in this court, for the reason that they are not sufficiently specific and definite.
The first objection is that there is no pleading authorizing the evidence, and that it is irrelevant, immaterial and incompetent. The next two are that the evidence is incompetent, irrelevant and immaterial, and the last two are that the evidence is incompetent, irrelevant and immaterial under the issues. Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234, and cases cited; McKinsey v. McKee, 109 Ind. 209, 9 N.E. 771, and cases cited. But we think the testimony was competent as a part of the transaction, unless it be the answer to the first question, which may have been objectionable as being merely hearsay; but, if so, it was wholly immaterial, and could have had no controlling effect in the result of the trial, for it otherwise appears in evidence, if that is a fact of any importance, that the certificate of deposit was not honored until word was received from Fletcher & Co. that the deed was all right.
There is no disagreement in the evidence, except as to two facts, and the court below having found as to these, its finding is conclusive upon this court. The finding of the court is as follows, in substance:
The appellee was a banking corporation doing business at Franklin, Indiana; one Jonathan L. Lord was a citizen of Rush county, Indiana, and the owner of lots 11 and 12 in in Strong's subdivision of lot 17, in Johnson's addition to Indianapolis. On the 27th of November, 1883, the appellant, who resided in Indianapolis, received by mail from Franklin a letter purporting to be signed by Jonathan L. Lord, referring to the said lots, and proposing to place them in the appellant's hands for sale, he being a real estate agent; thereupon a correspondence sprang up between the appellant and the writer of the letter--the appellant supposing that the writer was Jonathan L. Lord, the owner of the lots--which resulted in an agreement for the conveyance of the lots to the appellant for the sum of $ 800. At this point, and on December 1st, 1883, the appellant requested Fletcher & Co., his bankers at Indianapolis, to send to the appellee the following telegram:
The appellee received this telegram on December 2d, and immediately answered:
This answer was received on December 3d, and immediately communicated by Fletcher & Co. to the appellant. On Monday morning, December 3d, a man, an entire stranger to all the officers, came into the appellee's bank and said to the president and cashier that his name was Jonathan L. Lord; that he was expecting a deed to be sent down from Indianapolis and asked if it had come; he was informed that the mail had not come yet, to come in again after awhile. After the arrival of the mail he came again, but was informed that no deed had come. Thereupon the appellee's cashier telephoned S. A. Fletcher & Co., at Indianapolis, as follows:
"A man is in the bank who says his name is Jonathan L. Lord, and that he has an arrangement with you by which you are to send a deed for him to sign."
After receiving this message Fletcher & Co. sent for the appellant and communicated it to him, and at his request answered the appellee by telephone that he would at once send the deed by mail.
The appellant at once prepared a deed to himself for the lots, to be executed by Jonathan L. Lord and wife for a consideration of $ 800, and handed the same to Fletcher & Co., together with his check for $ 800, and at his request, on said 3d day of December, they transmitted said deed to the appellee, enclosing the following letter with it:
On the morning of December 4th the letter and deed were received, and soon after the man who had inquired for the deed came in and took it away, but shortly came back with it (it purporting to have been signed by Jonathan L. Lord, and acknowledged before a notary public) and delivered it to the appellee, and thereupon the appellee placed to his credit the sum of $ 800, and executed and delivered to him the following statement:
This was done without identification or other knowledge of the party than his own statements. Immediately thereafter appellee transmitted the deed to Fletcher & Co., together with the following letter:
The statement in the letter as to Lord's wife being dead rested entirely upon what the person said who was personating Lord. Fletcher & Co. received the letter and deed and delivered the deed to the appellant, who accepted it, believing from what was stated in the letter that Lord's wife was dead.
On the 5th of December this same man, who claimed to be Jonathan L Lord, came to the appellee's bank, and at his instance the appellee, by telephone, inquired of Fletcher & Co. if they had received the deed, and if it was all right, and whether it should pay the money? Fletcher & Co. answered that it was all right, and that they had given the appellee credit for $ 800, and thereupon this man, claiming to be Lord, checked from the appellee's bank...
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