Murray v. W.W. Kimball Co.

• Decision Date: 29 May 1894
• Docket Number: No. 1,287.,1,287.
• Citation: 37 N.E. 736,10 Ind.App. 141
• Parties: MURRAY et al. v. W. W. KIMBALL CO.
• Court: Indiana Appellate Court

10 Ind.App. 141

37 N.E. 736

MURRAY et al.

v.W. W. KIMBALL CO.

No. 1,287.

Appellate Court of Indiana.

May 29, 1894.

Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Action by the W. W. Kimball Company against James A. Murray and others on a promissory note. Defendants appeal from a judgment for plaintiff. Affirmed.

C. N. Pollard, for appellants. W. D. Davis and Bell & Purdum, for appellee.

REINHARD, J.

The questions presented in this case arise upon the overruling of the appellants' motion for a new trial. The action was similar to that in Murray v. W. W. Kimball Co., decided by this court at the present term. See 37 N. E. 734. The note sued upon in the present action is one of the same series as those involved in the case cited. A special plea of non est factum was filed in the case at bar similar to that in the case cited. The material difference in the two answers is that the one in the case in hand contains the averment that Edgar Hendee, the person in whose custody the notes are alleged to have been placed as an escrow, was the agent of the appellant James W. Murray for that purpose; while in the former case the averments showed, as we hold, that Hendee was the agent of the appellee, and that, therefore, the notes could not have been held by him as escrow, but that the delivery to him amounted to a delivery to the appellee. In the case at bar, an issue was formed upon the special answer referred to, and the same was submitted for a trial to a jury, who returned a verdict for the appellee. It is practically conceded in this case that if Hendee was acting as the agent of the appellants, or either of them, in receiving the note, and it was placed in his hands to be delivered only in case the condition mentioned in the answer was subsequently performed, there has not been any lawful delivery of such note, and the suit could not be maintained. Proceeding upon this theory, we will examine the causes assigned in the motion for a new trial and discussed by counsel.

The first ruling of which complaint is made is the giving of the first instruction, in which the court charged the jury, among other things, that, if they should find that the facts alleged in the special answer were true, their verdict should be for the defendants, but that if they found that the note in suit was placed in the hands of said Hendee as averred, and, further, that said Hendee was at that time the agent and attorney of the plaintiff, and was acting as such in such matter, and not as the agent of the defendants, then the defendants could not succeed in such paragraph. We think this instruction was fully as favorable as the appellants had the right to ask. It correctly stated the rule that if, in receiving the note, Hendee was acting as the agent of the appellee only, the...