Oliver v. Hubbard

• Decision Date: 17 October 1902
• Citation: 64 N.E. 927,29 Ind.App. 639
• Parties: OLIVER v. HUBBARD et al.
• Court: Indiana Appellate Court

29 Ind.App. 639

64 N.E. 927

OLIVER

v.HUBBARD et al.

Appellate Court of Indiana, Division No. 2.

Oct. 17, 1902.

Appeal from superior court, Marion county; John L. McMaster, Judge.

Action by Ceatta R. Oliver against Willard W. Hubbard and another. From an adverse judgment, plaintiff appeals. Affirmed.

H. N. Spaan, for appellant. Groninger & Groninger, for appellees.

WILEY, C. J.

Appellant sued appellee Hubbard to recover damages on account of alleged fraudulent representations in a settlement had between said Hubbard and his coappellee, Oliver. A demurrer was sustained to her amended complaint, and, refusing to plead over, judgment was rendered against her for costs. The overruling of such demurrer is the only error assigned.

The amended complaint avers that on or about the 28th of March, 1893, the appellee John Oliver, who was appellant's husband, entered into a written agreement with appellee Hubbard, by the terms of which Hubbard sold to Oliver certain real estate in Marion county, Ind., and a stock of general merchandise situate in a store building upon a part of such real estate, which stock invoiced for the sum of $4,000, and the consideration of said entire sale being $8,500; that by the terms of said contract appellee Oliver executed to his coappellee, Hubbard, seven promissory notes, of $1,000 each, payable in one, two, three, four, five, six, and seven years from date, and also one of $1,500, the latter being evidenced by notes executed by said Oliver, with said Hubbard as surety, and which said latter notes the said Oliver agreed to pay as additional consideration for said conveyance; that by the terms of said agreement the title to all said property was to remain in said Hubbard until all the amounts before specified were paid, and that, when said indebtedness should be reduced to $3,000, then said Hubbard was to execute his warranty deed for said real estate, and a bill of sale for said merchandise, conveying same to said Oliver, or to such person as he might designate, and thereupon said Hubbard was to take a mortgage on said real estate to secure the balance then due; that by the further terms of said agreement the said Hubbard and Oliver were to form a copartnership under the name of Acton Supply Company, and that the said Oliver was to operate the same, and was to keep a correct account of the receipts and expenses of said business, and that he was to turn over to said Hubbard the receipts of said business, less the expenses, and that by the terms of said agreement it was made the duty of said Hubbard to keep a “pass book,” wherein he should enter a concise statement of amounts due and owing him, and all other sums and amounts advanced by him in said business, together with a correct statement of amounts and debts of all kinds paid him by said Oliver. The contract between said Oliver and Hubbard was reduced to writing, and a copy of it was filed with the amended complaint, and made a part thereof. It is further charged that on or about the 12th day of July, 1894, a settlement was had between the said Oliver and Hubbard touching matters growing out of said contract, and that said settlement was had for the purpose of ascertaining the exact amount that had been paid by said Oliver under his contract with said Hubbard, and for the purpose of settling all the differences then existing between said parties, growing out of said contract. It is also averred that the further purpose of said settlement was to convey the property mentioned in said contract, both real and personal, to appellant, she being the person designated by said John W. Oliver, as the one to whom said property should be conveyed and transferred, and that the said settlement was to ascertain how much had been paid under said contract, and said amount was to be treated, between said John W....