Owen v. Harriott

• Decision Date: 31 March 1911
• Docket Number: 6,914
• Citation: 94 N.E. 591,47 Ind.App. 359
• Parties: OWEN v. HARRIOTT
• Court: Indiana Appellate Court

94 N.E. 591

47 Ind.App. 359

OWEN v. HARRIOTT

No. 6,914

Court of Appeals of Indiana

March 31, 1911

From Delaware Circuit Court; Ed Jackson, Special Judge.

Suit by Arthur L. Harriott against Timothy S. Owen and another. From a decree for plaintiff, defendant Owen appeals. (For decision on motion for a writ of certiorari, see 42 Ind.App. 604.).

Affirmed.

Timothy S. Owen and Frank Ellis, for appellant.

McClellan & Hensel, for appellee.

OPINION

HOTTEL, J.

This is a suit brought by appellee against appellant and Lewis L Perdiue, to collect a promissory note and to foreclose a chattel mortgage given to secure said note. Suit was dismissed as to Perdiue, and upon trial by the court there was judgment for appellee against appellant in the sum of $ 314.53, and a decree for the sale of the chattels mortgaged in case of default of payment of the judgment.

The complaint was in two paragraphs, to each of which a demurrer was filed and overruled. The defendant filed an answer in seven paragraphs, including the general denial and a paragraph of set-off.

Appellant in his brief states his propositions of law and the authorities relied upon to support them, without argument. In these propositions the third, eleventh, twelfth and fifteenth assignments of error only are considered. All other assignments, relied upon for reversal, are therefore waived. Rule 22 Supreme and Appellate Court; Hoover v. Weesner (1897), 147 Ind. 510, 45 N.E. 650; Gifford v. Baker (1902), 158 Ind. 339, 62 N.E. 690. A statement of the substance of each paragraph of complaint is all that is necessary to a consideration of the questions presented by these assignments.

The first paragraph of complaint contains all the necessary and usual allegations of a complaint upon a note and chattel mortgage given to secure it where the suit is by the payee against the maker of the note and mortgage, and copies of the note and mortgage are set out with this paragraph as exhibits, both of which are drawn in favor of appellee as the payee of the debt. The sufficiency of this paragraph is not questioned by appellant under his points and authorities.

The second paragraph contains all of the essential allegations of the first, with reference to the execution of the note and mortgage, the terms and conditions thereof as to payment, and allegations showing default of payment and that the debt for which the note was given was due and owing at the time of the filing of the suit, and makes copies of the note and mortgage a part of the paragraph as exhibits; but this paragraph contains the additional allegations that while the note upon its face is payable to appellee, and the mortgage, given to secure the note, is also made to him, they were in fact executed and delivered to him as the agent of his wife, Harriet Harriott, who had for many years been engaged in the jewelry business, and that appellee for some fifteen years had been her duly appointed and acting agent in the sale of such jewelry, and was so acting as such agent on February 28, 1906, and as such agent sold to appellant the jewelry for which the note sued on was given; that the jewelry so sold to appellant was the property of appellee's said wife, and that appellee took said note and mortgage therefor as her agent; that appellee's said wife has been at all times, and was at the time of the filing of the suit, the sole owner of said note and mortgage.

The third assignment of error calls in question the ruling of the court upon the demurrer to this second paragraph of complaint. The demurrer contains four grounds, but inasmuch as the first and fourth grounds only are considered by appellant in his brief, the second and third grounds will be disregarded. The first is "defect of parties plaintiff, in that Harriet Harriott, the real party in interest is not joined." The fourth is "that said second paragraph * * * does not state facts sufficient," etc.

Appellant insists that this second paragraph of complaint, upon its face, shows that appellee's wife, Harriet Harriott, is the real party in interest, and that on this account there is a defect of parties plaintiff, and a want of sufficient facts to show a cause of action in appellant, and that therefore appellant's demurrer to this paragraph, upon said grounds before stated, should have been sustained.

Section 251 Burns 1908, § 251 R. S. 1881, provides as follows: "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section."

Section 252 Burns 1908, § 252 R. S. 1881, provides as follows: "An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another."

Upon this question the Supreme Court, in the case of Mitchell v. St. Mary (1897), 148 Ind. 111, at page 115, 47 N.E. 224, uses the following language: "There must be something in the nature of the contract, appearing upon its face or from allegations in the pleadings, disclosing that a trust relation exists and is sought to be enforced for the benefit of the cestui que trust." (Our italics.) In the case at bar the allegations of the pleading clearly disclose this relation.

In the case of Rowe v. Rand (1887), 111 Ind. 206, 210, 12 N.E. 377, the court said: "An agent may sue in his own name: (1) When the contract is in writing, and is expressly made with him, although he may have been known to act as agent. (2) When the agent is the only known or ostensible principal, and is, therefore, in contemplation of law, the real contracting party."

Upon the question of who is a trustee of an express trust, the Supreme Court, in the case of Havenridge v. Mondy (1871), 34 Ind. 28, 31, said: "The meaning of the words 'a trustee of an express trust,' as used in section four above quoted, was not left to the interpretation and construction of the courts, but their signification and construction were so plainly and clearly defined by the legislature as to leave no room for doubt or construction. Any person is 'a trustee of an express trust' with whom, or in whose name, a contract is made for the benefit of another. The word 'contract' is not used in a limited or restricted sense, but it is used and intended to be applied to all and any kind of contracts. As the note sued upon was made for the use of William Mondy, this action might have been prosecuted in his name under the third section of article two of our code; but as it is payable to Alfred Mondy, for the use and benefit of William Mondy, it thereby makes Alfred Mondy the 'trustee of an express trust,' and the suit is properly prosecuted in his name under the fourth section above quoted." In cases like the one at bar, either the principal or the agent may sue.

In the case of Brooks v. Doxey (1880), 72 Ind. 327, 330, the court said: "It is abundantly clear that where a factor sells goods in his own name, and without notice to the purchaser that he is not the principal, the latter may sue the purchaser for the price of the goods, though the agent might sue therefor in the absence of any claim by the principal. Thus, in Wharton, Agency § 762, it is said: 'Principal may sue vendee in his own name. This necessarily follows from what has been stated. * * * This right exists though the factor be himself entitled to sue on the contract; or though the vendee supposed the factor to be the real vendor, the true principal being unknown.'"

In 1 Story, Contracts (5th ed.) § 263, the author says: "The cases in which an agent can sue third persons in behalf of his principal, may be divided into several classes, in all of which the rights of the two parties are correlative against each other. (1) Where an express contract in writing is made with the agent, personally, the principal not being named; * * * or where a promissory note is given to the agent personally in his own name, though it be for the benefit of the principal." To the same effect as the cases before cited are the following cases and authorities: Story, Agency (9th ed.) § 396; Sharp v. Jones (1862), 18 Ind. 314, 315, 81 Am. Dec. 359; Rawlings v. Fuller (1869), 31 Ind. 255; Fowler v. Rice (1869), 31 Ind. 258; Fuller v. Curtis (1885), 100 Ind. 237, 50 Am. Rep. 786; Wolcott v. Standley (1878), 62 Ind. 198; Landwerlen v. Wheeler (1886), 106 Ind. 523, 5 N.E. 888; Musselman v. Cravens (1874), 47 Ind. 1; Waddle v. Harbeck (1870), 33 Ind. 231, 233, 234; Mechem, Agency §§ 754, 757. Under the authorities cited, the demurrer to the second paragraph of complaint was properly overruled.

The eleventh assignment of error calls in question the ruling of the court on the motion for a new trial. Appellee insists that this error is not available because the record fails to disclose that any presentation of the motion was made to the trial court. The record discloses a record entry dated June 3, 1907, being the fifty-fifth judicial day of the April term, 1907, of the Delaware Circuit Court, which shows that said cause was tried and judgment rendered therein, which record entry was signed as follows: "Ed Jackson, successor to Honorable John M. Morris, deceased, October 5, 1907." The only entry upon the subject of filing a motion for new trial is in the words following: "Be it further remembered, that afterwards, to wit, on July 22, 1907, defendant, Timothy S. Owen, filed in the office of the clerk of the Delaware Circuit Court his motion for a new trial of this cause, which motion is in words and figures following, to wit."

The record further discloses that on ...