OPINION
BLACK
J.
An
action was brought in the Allen Circuit Court by one William
E. Mossman, as payee, against the appellant and appellee as
makers, upon a promissory note. These defendants separately
answered the complaint of Mossman by general denials, and
filed cross-complaints against each other, each therein
claiming to be the surety for the other upon said note.
A trial
resulted in a finding and judgment for the plaintiff Mossman
against both the defendants for $ 1,545.16; and the cause was
continued as to the question of suretyship between the
appellant and the appellee.
The venue having been changed to the court
below, the appellant filed an additional and supplemental
paragraph of complaint against the appellee, and the latter
withdrew the pleadings theretofore filed by him, and filed a
general denial of the several paragraphs of the
cross-complaint of the appellant, and filed also a pleading
denominated therein as a supplemental cross-complaint against
the appellant. The appellant's demurrer to the last
mentioned pleading of the appellee having been overruled, the
appellant filed an answer of general denial.
The
issues thus formed between the appellant and the appellee
were tried by jury, and a special verdict was returned.
The
appellant's motion for a new trial was overruled, but the
questions presented by the motion can not be decided by us
for the reason that the longhand manuscript of the
reporter's shorthand notes is not in the record, as it
does not appear to have been filed in the clerk's office
before it was incorporated in the bill of exceptions which
contains it.
A
motion of the appellant for judgment in his favor on the
special verdict was overruled, as was also his motion for
judgment in his favor on the appellee's complaint, and
for the appellee on the appellant's complaint.
There
has been some discussion by counsel of the action of the
court in overruling the appellant's demurrer to the
cross-complaint of the appellee, but it has been held that
where there is a special finding or a special verdict errors
in overruling demurrers to pleadings are not material.
Woodward v. Mitchell, 140 Ind. 406, 39 N.E
437.
The
facts were stated in the special verdict as follows:
"1.
That a corporation was organized under the
laws of the State of Indiana relative to the organization of
corporations, prior to April 5, 1888, called the Pennington
Pulley Works, in the city of Ft. Wayne, Indiana, with its
principal office in said city of Ft. Wayne.
"2.
That said corporation is and was doing business in said city
of Ft. Wayne, Indiana, on said 5th day of April, 1888, and on
that day, by its proper officers, said corporation executed
its note to Dupe and Higgins, which said note by its terms
became due four months after date, and that said defendant
Perry A. Randall wrote his name on the back of the said note.
"3.
That the entire capital stock of said corporation was fifty
thousand dollars.
"4.
That on the 10th and 15th days of May, 1888, said defendant
Charles Pape became an owner of a part of said stock, of the
face value of thirty-nine thousand dollars, by purchase
thereof.
"5.
That on said 15th day of May, 1888, said defendant, Perry A.
Randall, was the owner of a part of said stock, of the face
value of ten thousand dollars.
"6.
That immediately after the defendant Charles Pape became the
owner of said shares of said capital stock of said
corporation, and from the time of his election until after
the 31st day of August, 1888, he continued to hold said
office
of president and to discharge the duties of said office.
"7.
That from the time said defendant Charles Pape became
president of said corporation until said 31st day of August,
1888, he, with the assistance of Perry A. Randall and one
Allen McQuiston, who was employed as a clerk in the office of
said corporation, supervised and controlled the business
management of said corporation.
"8.
That said note executed by said corporation to said Dupe and
Higgins was in words and figures as follows, to wit:
" April 5th, 1888.
Four
months after date we promise to pay to the order of Dupe and
Higgins eleven hundred and forty-five dollars, negotiable and
payable at Hamilton National Bank, Ft. Wayne, with interest
at eight per cent. per annum and attorney's fees. Value
received, without any relief whatever from valuation or
appraisement laws. The drawers and endorsers severally waive
presentment for payment, protest, or notice of protest, and
non-payment of this note.
"
$ 1,145.00. Due August 8th.
Pennington
Pulley Works,
By Jas.
A. Pugh, Secretary.'
"And
that said note was endorsed by said payees, Dupe and Higgins,
and by P. A. Randall and J. D. Bond, cashier, for collection,
and John S. Patterson, cashier Piqua National Bank, of Piqua,
Ohio, for collection, and Theo. Stanwood, cashier First
National Bank, Cincinnati, Ohio, for collection.
"9.
That said note was not protested, and that at no time was
payment of said note demanded of said defendant, Perry A.
Randall, who had endorsed the same.
"10.
That said note payable to Dupe and Higgins was paid at the
Hamilton National Bank of Ft. Wayne, Indiana, on the 11th day
of August, 1888, by check of the Pennington Pulley Works
drawn by Allen McQuiston, who was then a clerk for and
working in the office of said corporation, on said Hamilton
National Bank, where said corporation then had a balance of
money to its credit in excess of the amount of said note.
"11.
That on said 10th day of August, 1888, said Charles Pape and
Perry A. Randall negotiated a loan of one thousand dollars
from one William E. Mossman, and at the suggestion of the
said Pape, communicated to said Randall by
said William E. Mossman, said Perry A. Randall signed said
note, which is the note set out in the complaint of the
plaintiff Mossman, writing his name under the name of said
Pape, whose name had been signed to said note before it was
presented to said Randall for his signature, and that said
Mossman delivered to said Pape, in consideration of said
note, at the time said Pape signed said note, a check on the
Columbia City Bank for one thousand dollars; said Pape caused
said check to be deposited in said Hamilton National Bank,
and that said check, together with some other small amounts
in said bank to the credit of said Pennington Pulley Works,
made up the amount upon which said Allen McQuiston drew said
check in payment of said Dupe and Higgins note.
"12.
That said check received by said Pape from said Mossman was
made payable to said Pape, and when delivered to the said
Hamilton National Bank was endorsed by him and by no other
person or corporation.
"13.
That there was no understanding or agreement between the
defendants Pape and Randall that he, Randall, would sign said
note to Mossman; nor was there any understanding or agreement
between said Mossman and the defendant Randall or the
defendant Pape that said Randall would sign said note with
the defendant Pape; that the defendant Pape signed said note
and delivered the same to plaintiff Mossman, and thereupon
said Mossman delivered to said Pape said check; that after
the signing and delivery of said note by said Pape to
Mossman, and the delivery of said check by said Mossman to
the said Pape, the said Pape requested the said Mossman to
have defendant Randall sign said note, and that afterwards
said Mossman presented said note to the said Randall, and
said Randall, upon request, signed the same.
"14. That the defendant Randall had
knowledge of what use was to be made of the consideration of
the said note to Mossman; nor did he in any manner direct
what disposition should be made of the money received from
said Mossman as a consideration for said note.
"15.
That the plaintiff, Mossman, recovered a judgment in the
Allen Circuit Court upon the said note on the 20th day of
June, 1894, against the defendants Pape and Randall. That the
amount of said judgment, including principal, interest,
attorney's fees, and costs, amount to $ 1,591.01, and
each of said defendants have paid thereon the sum of $
833.30."
The
formal conclusion was as follows: "If the law upon the
foregoing facts is with the defendant Pape, we find for the
defendant Pape upon his cross-complaint, and that he is
surety for the defendant Randall, and assess his damages at $
833.30. If the law upon the foregoing facts is with the
defendant Randall, we find for the defendant Randall upon his
cross-complaint, and that he is surety for the defendant
Pape, and assess his damages at $ 833.30."
The
court adjudged that the...
