Snodgrass v. Sweetser

• Citation: 44 N.E. 648,15 Ind.App. 682
• Decision Date: 22 September 1896
• Docket Number: 2,068
• Parties: SNODGRASS ET AL. v. SWEETSER ET AL
• Court: Indiana Appellate Court

44 N.E. 648

15 Ind.App. 682

SNODGRASS ET AL. v. SWEETSER ET AL

No. 2,068

Court of Appeals of Indiana

September 22, 1896

From the Grant Circuit Court.

Judgment affirmed.

G. W Harvey and A. DeWolf, for appellants.

W. H Carroll and G. D. Dean, for appellees.

OPINION

ROSS J.

This action was commenced by the appellees, against the appellant, Florence B. Snodgrass, to recover an alleged balance due upon an account. The pleadings were a complaint and an answer thereto of general denial, and a cross-complaint and an answer thereto in four paragraphs, as follows: First, a general denial; second, payment; third, settlement; and fourth, set-off. To the affirmative answers to the cross-complaint there was a reply of general denial.

The cause was tried by the court, and a special finding of facts made, with conclusions of law thereon. The only question urged on this appeal is, as to the correctness of the conclusions of law drawn by the court from the facts found.

The facts found by the court, with the conclusions of law thereon, are as follows:

"1. The plaintiffs, George Sweetser, Philip Matter, James V Sweetser, and George Webster, Jr., are partners under the name of the Marion Bank, and are doing a general banking business. They succeeded to all the rights and privileges, and became liable for all the debts and obligations, of George Sweetser, Philip Matter, James V. Sweetser, and Joel G. Sayre, late partners under the name of the Marion Bank.

"2. The defendant, Florence B. Snodgrass, during the time the accounts named in the complaint, cross-complaint, and answers thereto, were accruing, was doing business under the name of Snodgrass & Co., in buying and selling grain.

"3. Said Snodgrass & Co., during the time covered by the pleadings, made with the Marion Bank, at sundry times, deposits, specified in defendant's cross-complaint, amounting to $ 91,249.33. During the same period, the Marion Bank paid sundry checks drawn by Snodgrass & Co., with sundry items of interest and exchange specified in the complaint, amounting to $ 91,075.78, not including the four items mentioned in the seventh finding. Said amounts of $ 91,249.33 and $ 91,075.78 are correct.

"4. F. M. Stillwell was the agent of Snodgrass & Co. Checks drawn in blank on the Marion Bank, signed with the genuine signature of Snodgrass & Co., were furnished to said Stillwell to be used by him in the purchased of grain for Snodgrass & Co. Stillwell had authority to fill up said checks by inserting the name of the payee and the amount to be paid. Before issuing said checks, Stillwell was to sign the same. This arrangement was understood by the Marion Bank. On the 8th day of August, 1889, certain of such checks were in the possession of said Stillwell, signed with the genuine signature of Snodgrass & Co., for the purpose already stated. On said day said Stillwell, having occasion to be absent from his place of business at Swayzee, signed a number of such checks with his name, and left them with his clerk, to be used, if necessary, in the purchase and payment of grain, in his (Stillwell's) absence. He was absent from about 8 o'clock a. m. until about 10 o'clock of said day. During his absence, said checks were left in the office of said Stillwell, and were contained in a book which was in or on a desk which was not locked, nor was the office door locked. Said clerk was not in the office during all the time when Stillwell was absent on said day. During said day, one of said checks was abstracted by some unknown person. It was filled up so that the sum called for by the check was $ 210.00, and was made payable to one William Legg. Said check was presented at the plaintiffs' bank for payment by a person representing himself to be William Legg, payee. He was a stranger to the plaintiffs and their employes in the bank. At the suggestion of the cashier, the said person endorsed the name of William Legg on said check, which was then paid by the plaintiffs, and charged in the account against Snodgrass & Co. Said check, except as to the signatures of Snodgrass & Co. and F. M. Stillwell, was a forgery. The said check, taken from the office of said Stillwell, on the 8th day of August, 1889, and paid by said bank, was like all other checks drawn by the defendant through her agent Stillwell on the plaintiffs' bank. The payment of said check caused the over-draft mentioned in the seventh finding, upon which the item of interest of $ 2.19 in said finding is charged.

"5. Snodgrass & Co. bargained a carload of corn to a party in Boliver, Ohio, and shipped the corn to that place to the order of Snodgrass & Co., taking from the railroad company a bill of lading for the same. On the 23d day of May, 1890, Snodgrass & Co. negotiated and endorsed to the plaintiffs, a draft for $ 178.46, drawn on the purchaser of said corn, for the price thereof, to which draft said bill of lading was attached, and the plaintiffs gave the defendant credit for the amount of said draft. The Marion Bank sent the draft to Boliver, Ohio, for collection, and it was paid by the drawee to the express company, which was acting as the collecting agent. While the money was in the hands of the express company, certain parties in Ohio commenced an action before a justice of the peace against Snodgrass & Co., and instituted attachment proceedings, and garnisheed the express company in said action. Snodgrass & Co. were not personally served with process, and did not appear in said action before said justice. Notice was given by publication, as required in case of non-resident defendants. Judgment in attachment was rendered in said action by said justice against Snodgrass & Co. Said judgment was appealed from by Snodgrass & Co., to the Common Pleas Court of Tuscarawas county, Ohio; and the case was afterward compromised by Snodgrass & Co. and the other parties to said action, in said Common Pleas Court, upon the following terms: That said justice should pay over to the clerk of said court, the sum of $ 178.47, deposited with said justice by said garnishee, and that said clerk should pay to said justice his costs in said action, taxed at $ 16.80, and retain his own costs in said action, taxed at $ 3.67, and, out of the remainder, pay the plaintiffs in said action their judgment of $ 70.39 and $ 7.50 expenses, and pay the residue, being $ 80.11, to said Snodgrass & Co. And the Marion Bank received on account of said draft, $ 66.96, and charged the difference, $ 111.50, to Snodgrass & Co., February 16, 1891, and at the same time charged Snodgrass & Co. $ 6.76 interest on said difference, which had accrued on said difference up to said last named date.

"6. October 11, 1889, February 7, 1890, March 26, 1890, and May 10, 1890, statements of all accounts by and between the parties, and balances were made out and presented to Snodgrass & Co., at each of said times, and that interest on over-drafts was charged to the defendant in such balances and was not objected to by the defendant. Each of these statements and...