Miller Jewelry Co. v. Dickson, 16850.
| Decision Date | 16 June 1942 |
| Docket Number | No. 16850.,16850. |
| Parties | MILLER JEWELRY CO., Inc., et al. v. DICKSON. |
| Court | Indiana Appellate Court |
MILLER JEWELRY CO., Inc., et al.
v.
DICKSON.
No. 16850.
Appellate Court of Indiana, in Banc.
June 16, 1942.
Appeal from Marion Municipal Court; Dan V. White, Judge.
Action by George M. Dickson, Jr., against Miller Jewelry Company, Incorporated, and others to recover rent allegedly due. From a judgment for plaintiff, defendants appeal.
Affirmed.
[42 N.E.2d 399]
Julius V. Medias, of Indianapolis, for appellants.
John K. Rickles, of Indianapolis, for appellee.
BLESSING, Judge.
On the 25th day of April, 1930, the American Investment and Realty Company executed a lease to the appellant Miller Jewelry Company of suites Nos. 21 and 23 North Meridian Street, in the city
[42 N.E.2d 400]
of Indianapolis, Indiana, for a term of 10 years from the 1st day of June, 1930, to and including the 31st day of May, 1940. The rent stipulated by the agreement was in the sum of $6,000 per year for the first two years; $7,000 per year for the next two years; $8,000 per year for the next two years; $9,000 per year for the next two years; and $10,000 per year for the last two years of said term; said rent to be payable in equal monthly installments. Contemporaneously with the execution of the said lease, appellants Morris Dee and Mary Drozdowitz executed an instrument guaranteeing that they would pay to said American Investment and Realty Company such sum as might be necessary to cause the average minimum rental for said premises to be $8,000.
On the 16th day of July, 1934, appellant George A. Kuhn, the receiver of the Continental Building Company, Monument Place Building Corporation, and the American Investment and Realty Company, assigned and transferred to the Continental Building Company the 99-year lease to the Continental Bank Building, which included suites 21 and 23 North Meridian Street. The accounts and notes receivable of the American Investment and Realty Company were also assigned and transferred to the Continental Building Company. On December 30, 1935, the said Continental Building Company assigned and transferred to George Dickson, Jr., the appellee in this case, all its rights, title and interest in and to the unpaid tenant accounts.
Thereafter said George Dickson, Jr., instituted this action against the Miller Jewelry Company, Morris Dee, Mary Drozdowitz, and George A. Kuhn, as receiver, to recover the sum of $500, alleging in his complaint that the Miller Jewelry Company was indebted to said George A. Kuhn, as receiver of the American Investment and Realty Company, in the sum of $666.66 for rent for the month of December, 1934, but that said Miller Jewelry Company paid only the sum of $400, leaving a balance due and owing in the sum of $266.66. He also alleged that he was compelled to employ attorneys to enforce the payment of said sum; that a reasonable attorney fee was $150; and that he was entitled to interest at 6% per annum from December 31, 1934, until paid.
To appellee's complaint, the appellants filed five paragraphs of answer, numbered 3 to 7, inclusive. The third paragraph alleged accord and satisfaction; the fourth alleged estoppel; the fifth alleged fraud; the sixth alleged rescission and discharge, and the seventh alleged estoppel. Appellee demurred to each of said paragraphs of answer for want of facts sufficient to constitute a defense, which demurrers were sustained by the lower court. Upon refusal of the appellants to plead further, the court rendered judgment for appellee in the sum of $266.66, attorney fees in the sum of $75 and his costs. The appellants now appeal from this judgment, assigning as error the action of the court in sustaining the appellee's demurrer to each of the five paragraphs of answer.
The third paragraph of answer alleged that prior to the 28th day of December, 1934, a controversy existed between the Continental Building Company, appellee's assignor, and the Miller Jewelry Company as to the amount of rent due for the month of December, 1934; that on the 28th day of December, 1934, the Miller Jewelry Company sent its check for $400, with a notation thereon that the same was for “Rent for Dec/34”, to the rental agents of said Continental Building Company, and that “the same was handed over to said agents for plaintiff's assignor in full payment and satisfaction of all of the rent then due, and that if the same was not so accepted it should have been returned to the defendant Miller Jewelry Company, Inc.” It was further alleged that this check was endorsed and cashed by...
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