Reddick v. Keesling
| Decision Date | 18 September 1891 |
| Docket Number | 15,119 |
| Parties | Reddick v. Keesling |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
Judgment affirmed.
L. P Newby and M. E. Forkner, for appellant.
J. H Mellett, J. Brown and W. A. Brown, for appellee.
The complaint in this case alleges, among other things, that Lucinda Reddick, who was the wife of the appellant, died in the year 1876, leaving her husband and the appellee, an only child, as her only heirs at law; that said Lucinda, during her lifetime, delivered to the appellant eighteen hundred dollars in trust for the appellee, which he agreed to pay over to her, with the legal interest thereon, when she should be competent to receive and receipt for the same; that the appellee became twenty-one years of age in 1885, and demanded of the appellant a settlement of said trust, and the payment of said money to her, which was refused.
The appellant filed an answer to this complaint, consisting of seven paragraphs.
The seventh paragraph of the answer averred, generally, that in October, 1888, a suit was pending in the Henry Circuit Court between the parties to this suit, involving the identical claim now in controversy; that on the 6th day of October, 1888, the parties compromised and settled said claim; that by the terms of said compromise the defendant in this suit agreed to pay the plaintiff the sum of twenty-five dollars, and to give her a horse of the value of one hundred and twenty-five dollars in full settlement of said claim; that said settlement and compromise were fully complied with, and the suit dismissed under a written agreement, executed by the plaintiff, that she would not renew the same.
To this answer the court sustained a demurrer, whereupon the appellant asked and obtained leave to file an additional answer. He then filed additional eighth and ninth paragraphs of answer, which do not differ materially from the above seventh paragraph, except that the eighth states more fully the terms of the alleged compromise and settlement of the claim in suit.
To these last answers the appellee replied that the compromise and agreement to dismiss were obtained by fraud, in the absence of her attorney, setting out the facts, and alleging that she had not received anything under the terms of said compromise.
The cause was tried by the court, which referred certain questions of fact to a jury. Upon a return of the answers of the jury to the questions of fact referred to it, the court, upon proper request, made a special finding of facts in the case, and stated its conclusions of law thereon.
Among other things, it appears from the special finding of facts that the appellee is the only child of the appellant and Lucinda Reddick, deceased.
Lucinda died in the year 1876. In the year 1872 she received from her father's estate the sum of seventeen hundred and eighty dollars, six hundred dollars of which was cash, and the remaining eleven hundred and eighty dollars was paid her in notes, which had, prior to that time, been executed by the appellant to the father of the said Lucinda. She paid over the money to her husband, the appellant, and delivered up to him the notes, with the agreement that he should pay over to the appellee the sum of eleven hundred and eighty dollars when she became competent to receive and receipt for the same. At the time of her mother's death the appellee was about ten years of age.
In the year 1888 the appellee instituted an action in the Henry Circuit Court against the appellant on the claim involved in this suit, but before the same was called for trial she procured Alexander Herkless to call upon the appellant and agree with him that she would dismiss the suit if he would pay the costs. Pursuant to such agreement the appellant paid twenty dollars. The money was applied to the payment of costs and to fees due the appellee's attorneys, and the suit was accordingly dismissed.
At the time the money was paid the appellant caused the following agreement to be prepared, viz.: and sent the same to the appellee, with directions to say that if she would sign it and return it to him he would give her a horse. She did sign it, and returned it by mail, but she never received or accepted the horse. It was signed after the suit was dismissed. The instrument was not intended by the appellee as a settlement of the claim now in suit. Before the commencement of this suit the appellee demanded of the appellant the money for which she sues.
That the appellee could maintain an action in her own name to recover the money left with the appellant by her mother to be paid over to her is too firmly settled by authority to need discussion. It is contended by the appellant, however, without denying this legal principle, that certain errors occurred during the progress of the cause which prevented him from having a fair trial.
We will consider the alleged errors upon which the appellant relies for a reversal of the judgment in the order in which they are presented by his counsel in their able brief in the cause.
First. It is insisted that the finding of the court is not sustained by the evidence in the cause. It is contended, first, that there is no proof that any money was left in the hands of the appellant by the mother of the appellee in trust for the latter; and, second, that there is a material variance between the allegations in the complaint and the evidence in the cause.
The evidence tends to show that the mother of the appellee received as her distributive share of her father's estate about eighteen hundred dollars. Of this sum the appellant received eleven hundred and eighty dollars by way of the payment of a note due from him to the estate. The evidence further tends to show that appellant repeatedly acknowledged a liability to the appellee on account of this money, said he was keeping it for her, and promised to settle with her when he could sell his farm.
From these facts the conclusion that he held the money in trust for the appellee is not wholly unwarranted. There is some evidence tending to support the finding of the court, and under the well known rules we are not at liberty to interfere with such finding.
It is urged by the appellant that the evidence tends to show that there was no money left in the hands of the appellant, but that if anything was left with him it was a promissory note, and proof that a promissory note was left with him does not support the allegation that it was money.
The court was authorized to find from the evidence in the cause that the appellee's mother paid a note due from the appellant to her father's estate and surrendered the note to him. If so, it may well be said that she left the money due on the note in the hands of the appellant. At least the variance, if any existed, was not material.
Section 391, R. S. 1881, provides that
It is not claimed that the appellant was in any way misled by the alleged variance in this cause, or that he was prejudiced in his defence, and under the terms of the statute such variance, assuming that it exists, must be held to be immaterial. Ashton v. Shepherd, 120 Ind. 69, 22 N.E. 98.
Second. It is contended by the appellant that the court erred in its conclusions of law upon the facts as stated in the special finding.
In this connection it is contended, first, that the dismissal of the action pending in the Henry Circuit Court between the parties to this suit, by agreement, is a bar to another action for the same cause; and, second, that in no event could the appellee maintain an action without first tendering back to the appellant the twenty dollars paid on the agreement to dismiss the action then pending.
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