Smith v. Wood

Decision Date20 December 1892
Citation133 Ind. 221,32 N.E. 921
PartiesSMITH v. WOOD, (MORROW, Intervener.)
CourtIndiana Supreme Court


Appeal from superior court, Marion county; J. W. Harper, Judge.

In a proceeding by Augustus H. Smith against George P. Wood for the appointment of a receiver, Daniel Burton was appointed receiver. Wilson Morrow filed an intervening petition that the receiver account to him for certain money. From a judgment of the general term of the superior court reversing a judgment of the special term, the receiver appeals. Affirmed.Winter & Elam, for appellant. Duncan & Smith, for appellee.

McBride, J.

The firm of Wood & Smith was engaged in the cooperage business at Indianapolis, and manufactured tierces for Kingan & Co. By oral agreement between the parties the tierces were to be delivered to Kingan & Co. at their packing house, subject to inspection and counting by a representative of the purchaser. Airtight tierces thus delivered and accepted were to be paid for, but if, on inspection, any were found not air-tight, they were to be taken away by Wood & Smith, and made air-tight. If tierces were at any time manufactured faster than they were needed by Kingan & Co., the surplus tierces were to be stored by Wood & Smith in their warehouses until needed. For tierces accepted without being stored, Kingan & Co. paid $1.27 1/2 each. When tierces were stored, Wood & Co., from time to time, furnished to Kingan & Co. written statements, showing the number stored, and where they were stored; and on such written statements Kingan & Co. advanced $1 for each tierce stored. When the stored tierces were needed they were delivered to Kingan & Co., subject to a similar inspection to that given the tierces not stored, and when accepted 37 1/2 cents additional was paid for each tierce; 10 cents more being paid for each tierce stored than for those not stored, to cover the expense of storage, insurance, etc. On the 15th day of August, 1891, more than 5,500 tierces were stored in warehouses belonging to Wood & Smith, under this oral agreement, and on written statements furnished by them from time to time Kingan & Co. had paid them $1 each on such stored tierces. At the same time Wood & Smith were indebted to one Mrs. Ada M. Carey in a sum exceeding $4,000, all of which was due. She, being in urgent need of money, demanded of them $1,793.19 of the sum thus due her, but they were unable to pay it at that time. The appellee, Wilson Morrow, who was at the time attorney for Mrs. Carey, had some money, and it was orally proposed that if he would advance to Wood & Smith said sum of $1,793.19 for her use, they would execute to her their note for that sum, due in 90 days, which she should then indorse to Morrow, and that said Wood & Smith should then give to Morrow what they called a “warehouse receipt” for 5,500 of the tierces stored in their warehouses for Kingan & Co., on which said advances had been made, and would transfer to Morrow the remaining sum of 37 1/2 cents which was to be paid on each of said tierces when they were delivered and accepted. Wood & Smith also said at the time that they thought they would be able to pay a part of the sum due on the note at its maturity with money other than that coming to them from Kingan & Co., and that they would do so if possible, in which case any money received from Kingan & Co. for the 5,500 tierces, in excess of the amount necessary to pay the note, should be paid to Mrs. Carey on the remainder of her claim against them. This proposition was on the same day accepted and acted upon. The money was furnished by Morrow, and applied upon the claim. The note was executed by Wood & Smith to Mrs. Carey, and was indorsed by her to Morrow, and Wood & Smith at the same time executed to Morrow a writing, of which the following is a copy: “Indianapolis, August 15th, 1819. We hereby agree to pay balance due on tierces stored in one brick warehouse, viz. (3,500) thirty-five hundred tierces, and (2,000) two thousand in Patrick Manley's cellar; balance to be 37 1/2 cents per tierce; amount subject to Wilson Morrow's demand as fast as tierces are delivered during the packing season of 1891-92. Above tierces are fully insured by us. Wood & Smith.” With the exception of this writing and the note, nothing was reduced to writing. The note was never paid. On the 6th day of October, 1891, and before its maturity, the firm of Wood & Smith had become insolvent, and Smith, one of the partners, commenced suit in the superior court of Marion county against his copartner, Wood, praying in his complaint for a dissolution of the partnership, and for the appointment of a receiver to take possession of its assets, and settle up its affairs. He was successful, and the appellant was appointed as receiver. He qualified, and entered upon the discharge of his duties as such, and is still thus acting.

The immediate controversy now before us grows out of the filing by Morrow of an intervening petition after the maturity of the note, based upon the ground that by virtue of the transaction, the details of which we have above recited, the property in the 37 1/2 cents due on each of the 5,500 stored tierces passed to him and Mrs. Carey, and asking an order on the receiver to account to him for an amount thereof sufficient to pay the amount due on the note, and to account to Mrs. Carey for the balance. Kingan & Co. also filed an intervening petition, claiming that title in the stored tierces was in them, and for an order protecting their rights, and obtained a decree adjudging them to be such owners, subject to their compliance with the terms of their contract relative to inspection, the payment of the balance due, etc. In that adjudication the court left the rights of the appellee undetermined, but directed the payment by Kingan & Co. to the receiver of the balance due on the tierces, and further decreed that such rights, if any, that the court might thereafter determine existed in favor of the appellee therein should be transferred to the fund in the receiver's hands. The superior court, in special term, having made a special finding of the facts, adjudged that the appellee...

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8 cases
  • Fleming v. Greener
    • United States
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    • December 16, 1909 and therefore nullities, and must be disregarded. Citizens', etc., Bank v. Judy, 146 Ind. 322, 348, 43 N. E. 259;Burton v. Morrow, 133 Ind. 221, 226, 32 N. E. 921. By express provision of the statute, this court is authorized to order a new trial when the justice of the case requires i......
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