Patterson v. State Bank of Chrisman

• Decision Date: 14 October 1913
• Docket Number: 8,621
• Citation: 102 N.E. 880,55 Ind.App. 331
• Parties: PATTERSON, ADMINISTRATRIX, v. STATE BANK OF CHRISMAN
• Court: Indiana Appellate Court

102 N.E. 880

55 Ind.App. 331

PATTERSON, ADMINISTRATRIX, v. STATE BANK OF CHRISMAN

No. 8,621

Court of Appeals of Indiana

October 14, 1913

Rehearing denied January 8, 1914.

From Madison Circuit Court; Charles K. Bagot, Judge.

Action by the State Bank of Chrisman against the estate of Silas M Busby, deceased, and from a judgment for plaintiff, the administratrix appeals.

Affirmed.

Sparks L. Brooks and Kittinger & Diven, for appellant.

W. S. Ellis and Alfred Ellison, for appellee.

OPINION

SHEA, J.

This action was brought by appellee against the estate of Silas M. Busby, deceased, upon two promissory notes alleged to have been executed by Leonidas F. Busby, Bloomer W. James and Silas M. Busby, under the names and styles of L. F. Busby, B. W. James and S. M. Busby, and filed with the clerk of the Madison Circuit Court as a claim against said estate. Appellee's amended claim not being allowed or disallowed by the administratrix, Lillie Patterson, within sixty days, the same was entered upon the court's claim docket for trial. Appellant's demurrer thereto was overruled. The issues formed were tried by court and jury, resulting in a verdict and judgment for appellee.

With its general verdict, the jury returned answers to eleven interrogatories. The overruling of appellant's motion for judgment in its favor upon the interrogatories and answers notwithstanding the general verdict, and the overruling of its motion for a new trial are the errors relied upon for a reversal of this cause.

The first note in suit reads as follows:

"Chrisman, Illinois, Oct. 15, 1908.

$ 1,000.00 Six months after date we, or either of us, promise to pay to the order of The State Bank of Chrisman One Thousand and No/100 Dollars, payable at the office of said bank, in Chrisman, Illinois, for value received, with interest at the rate of seven per cent per annum after date until paid, and if not paid at maturity and put in an attorney's hands for collection, we agree to pay ten per cent attorney's fee on the amount due. The drawers and endorsers severally waive presentment, protest, and notice of protest of nonpayment of this note. L. F. Busby. B. W. James. S. M. Busby.

Due April 15, 1909."

The second note is an exact copy of the first except that it is for $ 3,000, dated November 18, 1908, and due May 18, 1909.

The facts as found by the jury in answer to interrogatories, are substantially, that decedent, Silas M. Busby, in person, signed and executed the following instrument introduced in evidence, and designated as exhibit A:

"We the undersigned do agree that we will stand together and support the firm of B. W. James and L. F. Busby and we grant the right of our names to be used jointly and to be signed by either one of the persons signed below.

Dated Sep. 25, 1906. B. W. James. L. F. Busby. S. M. Busby."

That Silas M. Busby did not sign the notes in suit, but by written agreement authorized B. W. James and L. F. Busby to do so, and his name was signed thereto by L. F. Busby; that B. W. James and L. F. Busby were principals on said notes and S. M. Busby was surety; that claimant had knowledge that the name of Silas M. Busby was signed to the notes in suit as surety by his son, Leonidas F. Busby; that both B. W. James and L. F. Busby are nonresidents of the State of Indiana.

It is urged by appellant that the written instrument above set out, did not authorize L. F. Busby to sign the name of Silas M. Busby to the negotiable instruments in question. Appellant states his case upon this point briefly as follows: "L. F. Busby signed the name of S. M. Busby to these notes and his only authority to do so was derived from this written agreement known as exhibit A. That the claimant knew that he signed the name to the notes and would thereby be bound by the limitations upon his authority. Now, since this agreement cannot, under any fair construction, be construed to authorize the execution of the notes in suit, it follows that the claimant has no cause of action against appellant and that there can be no recovery herein." The written instrument in question is not certain in its terms. It was evidently drawn by a layman, rather than dictated by a legal mind. Under numerous authorities, the construction given and acted upon by the parties themselves in respect to such contract, will, as a general proposition, be adhered to in this court. Scott v. Lafayette Gas Co. (1908), 42 Ind.App. 614, 620, 86 N.E. 495; Ralya v. Atkins & Co. (1901), 157 Ind. 331, 61 N.E. 726; Frazier v. Myers (1892), 132 Ind. 71, 31 N.E. 536, and authorities cited; Louisville, etc., R. Co. v. Reynolds (1889), 118 Ind. 170, 20 N.E. 711. In the case of Indiana, etc., Oil Co. v. Stewart (1910), 45 Ind.App. 554, 90 N.E. 384, the court says: "The rule is that where a contract is ambiguous, the situation of the parties and the facts and circumstances may be considered in determining the actual intent and meaning of the parties, as expressed by the language used. The contract as made is the one to be enforced. [Citing authorities] It is also true 'that when the terms of a contract are of doubtful or ambiguous meaning, the construction placed on same by the parties, by their conduct and acts, may be shown for the purpose of arriving at their true intention. The construction placed on such a contract by the parties is entitled to great weight and may be controlling. * * *' [Citing authorities.]"

In passing upon the correctness of a ruling on a motion for judgment upon the interrogatories and answers thereto, notwithstanding the general verdict, our investigation is confined to the pleadings, interrogatories and answers, and the general verdict. The general verdict determines all the material allegations of the complaint in favor of the pleader and carries with it every presumption and inference of fact which might have been drawn from evidence properly admitted under the issues. The answers to interrogatories overcome the general verdict only when they are in such irreconcilable conflict therewith that both can not stand. Consolidated Stone Co. v. Summit (1899), 152 Ind. 297, 53 N.E. 235; Chicago, etc., R. Co. v. Fretz (1910), 173 Ind. 519, 528, 90 N.E. 76; Cleveland, etc., R. Co. v. Harvey (1910), 45 Ind.App. 153, 90 N.E. 318; City of Jeffersonville v. Gray (1905), 165 Ind. 26, 74 N.E. 611.

We think we need not go beyond the interrogatories themselves to determine the construction given to the agreement by the parties. Interrogatories Nos. 4 and 5 find expressly that Silas M. Busby authorized B. W. James and L. F. Busby to sign his name to the particular notes sued on in this case. Interrogatory No. 6 finds that L. F. Busby signed the name of Silas M. Busby to the notes in question, so we think the very able argument of appellant's learned counsel with respect to the construction of written instruments, and the application of legal principles thereto, while stating the law correctly, has no application to the facts in this case. The parties themselves construed the writing to mean that L. F. Busby had authority to sign the name of S. M. Busby to these notes.

Under the second error assigned, appellant argues that the evidence does not sustain the verdict. We have examined the evidence with some care, and feel that there was evidence heard by the jury which would sustain every material allegation contained in the amended claim, and was therefore sufficient.

It is next insisted that the court erred in admitting and excluding certain evidence. Mrs. Busby, wife of decedent, was permitted to testify with regard to some conversation with her husband with respect to his interest in the store in question. Communications between husband and wife are as a rule privileged. It is insisted on behalf of appellee that this evidence was admitted for the purpose of showing that decedent was principal and not surety on the note in question. Upon this issue, the finding of the jury was that S. M. Busby was surety, so that no harm resulted. The principal issue in the case was as to whether S. M. Busby executed a certain written instrument in the record as exhibit A, and as to whether such instrument, if so executed, authorized L. F. Busby to sign his name to the notes in suit. As to that issue, we think the evidence was of such slight consequence as not to have influenced the verdict in any way, and therefore if the admission of this evidence could be held to be error, it was harmless. Robbins v. Masteller (1897), 147 Ind. 122, 46 N.E. 330; Halstead v. Vandalia R. Co. (1911), 48 Ind.App. 96, 103, 95 N.E. 439.

It is also urged that the court erred in admitting the written instrument exhibit A in evidence, for the reason that the construction of this instrument was a question of law for the trial court. We think that no error was committed in this, as the mere admission of the instrument in evidence in no sense affected the duty of the court to construe and give legal effect to the instrument.

No error was committed in the admission of the evidence of C. W. Newkirk, or the refusal to permit Lillie Patterson to testify as to her knowledge of the claim.

Section 2831 Burns 1908, § 2313 R. S. 1881, provides that...