Russell v. Gift

• Decision Date: 01 August 1929
• Docket Number: No. 13454.,13454.
• Citation: 167 N.E. 546,90 Ind.App. 106
• Parties: RUSSELL et al. v. GIFT.
• Court: Indiana Appellate Court

90 Ind.App. 106

167 N.E. 546

RUSSELL et al.

v.GIFT.

No. 13454.

Appellate Court of Indiana, in Banc.

Aug. 1, 1929.

Appeal from Marion Municipal Court; Thos. E. Garvin, Judge.

Action for money had and received, by Margaret E. Gift against George W. Russell and another, doing business as a partnership under the firm name of George W. Russell & Co., in which defendants filed a cross-complaint. From a judgment for plaintiff, defendants appeal. Affirmed.

Anderson & Mayfield, of Indianapolis, for appellants.

Fitzpatrick & Fitzpatrick, of Indianapolis, for appellee.

NICHOLS, J.

Action for money had and received, by appellee, against appellants, alleging that appellants had collected and retained $230 belonging to appellee which they had failed on demand to pay over to her. Appellants filed answer in set-off for $48.90, and a cross-complaint asking $425 as commission due them on a written contract for the sale of real estate belonging to appellee. Appellee admitted the set-off on account of money paid out by appellants for repairs, and filed to the cross-complaint an answer in three paragraphs, denial, fraud, and estoppel. The second paragraph avers, in substance, that the signature of appellee and that of her husband to the sales agency contract in writing attached to appellants' cross-complaint was obtained from appellee by the affirmative fraud of appellant Sims, one of the partners of George W. Russell & Co., in that said appellant came to the home of appellee on or about April 25, 1927, and requested appellee and her husband to sign a written contract giving appellants the right and privilege to sell the property of appellee for $8,500; that at said time appellee and her husband informed said Sims that a man engaged in the real estate business in Indianapolis by the name of Ayres already had the same for sale and had informed appellee and her husband that he had a buyer for said property that would pay her $8,500 therefor, and already had a check made payable to her for $500 to bind such proposed purchase; that thereupon appellant Sims informed and represented to appellee and her husband that, if they would sign said sales agency contract, the same would have no binding force or effect if said deal then pending and promoted by said Ayres resulted in the purchase of said real estate so owned by appellee; that he desired appellee to sign said option in writing to appellants in order to save them another trip to the home of appellee, and so that if the other sale did not go through they could be prepared that much earlier to look for a buyer for said real estate; and further represented that if said Ayres effected said sale to said prospective purchasers, neither appellee nor her husband would owe appellants anything, as he was asking appellee and her husband to sign said contract at that time solely for the benefit and accommodation of appellants; that appellee and her husband had known appellant Sims as a real estate man for some time, and they were deceived to appellee's injury, in that appellee and her husband did sign said contract, but only for the purpose as herein set out; that thereafter the deal so promoted by Ayres went through and sale was effected through him, and appellee paid him the commission in the sum of $355 as she had agreed to do, and immediately notified appellants that said sale had been effected through said Ayres; that said contract so given to appellants was not intended by either of the parties thereto to be in effect unless and until said deal then pending with said Ayres had failed; that said sale was effected through said Ayres, and the money paid to appellee through his efforts, and on the deal and with the person with whom the same was pending at the time said contract so given to appellants was executed and delivered. The third paragraph, on the theory of estoppel, avers substantially the same facts as the second.

Appellants' demurrer respectively to these paragraphs of answer was overruled as to each paragraph, and appellants thereupon replied in denial. The cause was submitted to the court for trial, which resulted in a finding and judgment for $181.10, from which, after appellants' motion for a new trial was overruled, this appeal; appellants assigning as error the court's ruling on their demurrer to the answers to the cross-complaint, and in overruling their motion for a new trial.

Appellants present by each of these assignments of error, so far as we need to consider, but one question, and that is as to whether, under circumstances such as here, a written agreement can be avoided by a contemporaneous agreement in parol. The general rule that the contents of a written instrument cannot be contradicted, altered, added to, or varied by...