Neisler v. Harris

• Decision Date: 29 September 1888
• Citation: 18 N.E. 39,115 Ind. 560
• Parties: Neisler v. Harris et al.
• Court: Indiana Supreme Court

115 Ind. 560

18 N.E. 39

Neisler

v.Harris et al.

Supreme Court of Indiana.

September 29, 1888.

Appeal from superior court, Marion county; D. W. Howe, Judge.

Ritter & Ritter, for appellant. D. V. Burns, for appellees.

Howk, J.

In this case, appellant, Neisler, as plaintiff, sued the appellees, Charles E. and Hannah W. Harris, as defendants. In his complaint, plaintiffalleged that at and prior to the ------ day of ------, 1884, defendant Charles E. Harris was, and since had been, indebted to plaintiff in the sum of $3,000, for money laid out and expended by plaintiff for said defendant, and for his use and benefit, as shown by bill of particulars therewith filed, and that such indebtedness was then due and owing, and wholly unpaid, although payment thereof had been theretofore demanded. Plaintiff averred that, while said defendant was so indebted to him, to-wit, “on the ------ day of ------, 1884, said defendant purchased from one ------ Stilz certain real estate, particularly described, in Marion county, Ind.; that, for the fraudulent purpose of cheating, hindering, and delaying his creditors, and especially the plaintiff, said defendant procured said real estate to be conveyed to his wife, Hannah W. Harris, his co-defendant herein; that said Hannah W. paid no part of the consideration for said conveyance, but that the same was wholly paid by defendant Charles E. Harris; that at the time said conveyance was made said Hannah W. Harris had notice of the aforesaid fraudulent purpose of said Charles E. Harris; that at the time said conveyance was made said Charles E. Harris had no other property subject to execution, sufficient to satisfy plaintiff's claim, or any part thereof; and that at the time this suit was commenced said Charles E. Harris had no other property subject to execution; wherefore,” etc. Plaintiff stated his alleged cause of action herein in two other paragraphs of complaint, which differ from the first paragraph chiefly in this: that in each of the second and third paragraphs of his complaint plaintiff has set forth certain contracts and agreements in which he claims that the alleged indebtedness of said Charles E. Harris to him had its origin. It is not necessary, we think, to a proper understanding of this case, or of the questions presented for decision herein, that we should now give a summary even of the facts alleged by plaintiff in the last two paragraphs of his complaint. Defendant Hannah W. Harris separately answered, by a general denial of the whole complaint. Defendant Charles E. Harris separately answered in two paragraphs, as follows: (1) A general denial of the complaint; and (2) payment in full of the demands sued for, before the commencement of the action. Plaintiff replied by a general denial of the second paragraph of answer. The issues joined were tried by the court, and at plaintiff's request the court made a special finding of the facts, and therein stated its conclusions of law in favor of defendant Hannah W. Harris, and (2) in favor of plaintiff as against defendant Charles E. Harris in the sum of $2,768.30. Over plaintiff's exception to the first conclusion of law, the court rendered judgment thereon that plaintiff take nothing by his suit as against said Hannah W. Harris, and that she recover of him her costs. On appeal the general term affirmed the judgment at special term, and from the judgment of the general term the plaintiff prosecutes this appeal. In general term below, plaintiff assigned error upon the first conclusion of law upon the facts found specially by the trial court, and he has properly presented here the same alleged error for our consideration. The facts found by the trial court were substantially as follows: “(1) On and before the 12th day of April, 1884, the plaintiff, Oscar L. Neisler, and the defendant Charles E. Harris were partners, engaged in manufacturing and selling patent coiled hoops and trunk-slats, upon leased property, at numbers from 516 to 524 East Michigan street, in the city of Indianapolis, Marion county, Ind., and owned the building, machinery, engines, boiler, and mills situate thereon, and at and before that time one Aden Baber had a mortgage upon said building and machinery for the sum of $4,000, taken to secure money loaned to said firm. (2) On the said 12th day of April, 1884, plaintiff sold and assigned his interest in said firm to the defendant Hannah W. Harris, who is the wife of defendant Charles E. Harris. Said Hannah W. Harris took said interest subject to and with the knowledge of said mortgage to said Aden Baber, but did not assume or promise to pay the same. In said purchase, said Charles E. Harris acted as her agent, and, without any consideration moving to him, promised and agreed to pay all of the said firm's debts. (3) On the same day said Charles E. Harris...