Snyder v. Frank

• Decision Date: 23 April 1913
• Docket Number: No. 7,828.,7,828.
• Citation: 53 Ind.App. 301,101 N.E. 684
• Parties: SNYDER v. FRANK et al.
• Court: Indiana Appellate Court

53 Ind.App. 301

101 N.E. 684

SNYDER

v.FRANK et al.

No. 7,828.

Appellate Court of Indiana, Division No. 1.

April 23, 1913.

Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Suit by Harley R. Snyder against Sol Frank and others. From a judgment for defendants, plaintiff appeals. Reversed, with directions to grant a new trial, and for further proceedings.

J. W. Wilson and J. W. Brumfield, both of Petersburg, and Pickens, Moores, Davidson & Pickens, of Indianapolis, for appellant. Jno. K. Chappell, of Petersburg, for appellees.

HOTTEL, J.

This was a suit by appellant on a $1,000 promissory note executed by appellees August 1, 1908, and due August 1, 1909.

The complaint was in one paragraph. Appellee Levi filed an answer of suretyship. Appellee Sol Frank filed a set-off, in which he sought to recover on a $520 note, of date April 28, 1900, executed by appellant, Snyder, to Gus Frank, indorsed G. Frank. To this set-off appellant replied in three paragraphs, the first paragraph being a general denial, the second a plea of payment, and the third a plea of accord and satisfaction by the sale and delivery to Gus Frank of 52 shares of stock of $100 each in the Alaska Gold Mining Company of Indiana, which stock was alleged to have been bought by the said Frank through said Snyder on the 28th day of April, 1900, at and for the price of $520 and assigned to said Frank on the books of said corporation on the 30th day of April, 1900.

There was a trial by the court and a finding for the appellant, Snyder, on the note sued on by him in the sum of $1,254.95, principal, interest, and attorney's fees, and a finding for the appellee Sol Frank on his set-off in the sum of $1,030.40, principal, interest, and attorney's fees, on which finding the court rendered judgment for Snyder in the sum of $224.55, being the excess of the sum found due on the note sued on in the complaint over that found due on the note filed with the set-off. The appellant filed a motion for new trial, which was overruled and exceptions saved. The ruling of this motion is the only error assigned.

Eight grounds for a new trial are stated in the motion; but it is, in effect, conceded by the parties that the questions presented by the appeal all turn upon the disposition to be made of the sixth and seventh grounds for said motion. These grounds relate to the admission of evidence. During the progress of the trial the appellant offered Simeon J. Haines as a witness, and, subject to appellees' objections, he was permittedto testify in substance that on April 28, 1900, Harley Snyder came to him to buy that stock for Gus Frank, referring to the mining stock for which the note mentioned in the set-off was alleged to have been given, and that at the time he made the transfer of such stock to Frank, and while Snyder was paying him the money therefor, Snyder said to him (the witness): “Now, I had to give my note for this money, and I want to have the stock sent back to me, and I will deliver it to Mr. Frank and pay my note. That is how I come to assign the stock to him. I had got my money and assigned the stock over and instructed the secretary to return the stock to Mr. Snyder.” This witness, on cross-examination, testified as follows: “Q. Now, when was it that Mr. Snyder told you that he was the agent of Mr. Frank to buy some stock that you owned? A. Well, I think it was on Friday before that he told me that Mr. Frank told him that he wanted some stock and wanted to know if I would sell some of my stock. I told him I would. Q. All you know about that is what Snyder told you himself? A. That is all.”

The appellant offered him as a witness, and, subject to appellees' objections, testified to a conversation between himself and Gus Frank in reference to the purchase of stock in the Alaskan Gold Mining Company, substantially as follows: “Mr. Frank remarked to me that he had five share of stock in the Juallem Mine, and he would not mind to a block of stock in the mine I was associated with, provided he could get it cheap enough, and asked me to see what I could secure a block of it for him. The next day I told him I could secure a block of stock from Mr. Haines for him for $10 a share. He said he would take it. This was on the 28th day of April, 1900. I saw Mr. Frank in the bank an hour or two after this talk, and I told him that Mr. Haines wanted to dispose of 52 shares of his stock. Mr. Frank then gave me the cash, $520, to pay for it. At the time he gave me this money, I requested him to write a receipt, saying that I would sign it until I closed the deal for him. He took up this temporary note off the table and filled it out and said, ‘Sign this.’ The body of this note is in the handwriting of Gus Frank. This note was given by me to him for the $520 I got of him and paid to Mr. Haines for the 52 shares of stock. I paid the same money I got from Mr. Frank to Mr. Haines the day I got it from Mr. Frank, and after that delivered the stock to Mr. Frank.” After being requested to look at a book, the witness testified that he delivered to Mr. Frank certificate No. 608 for 20 shares; that he delivered certificates 608, 609 and 610 on the 2d day of May, 1900; that at the time he delivered the stock he called for his note. “Mr. Frank made search for the note through his safety box there in the bank and failed to find it, and remarked that if he could find it he would hand it to me, and if not he would give me a receipt against it. Two weeks later I went away. The stock was issued to Mr. Frank by the corporation Monday, the 30th. I delivered it to him May 2d. I got the reissue of stock I gave to Mr. Frank from Mr. Moore through the post office. Mr. Frank never mentioned the note to me afterwards.” A cross-examination of the witness developed the same facts more in detail.

The court, after hearing this evidence of each of said witnesses, finally sustained the objection in each case and excluded it, to each of which rulings the appellant excepted, and assigned the same as his sixth and seventh grounds, respectively, for a new trial, and is now insisting that such evidence was improperly excluded.

Gus Frank, the original payee of the $520 note involved in the set-off, died December 16, 1909. It is claimed by Sol Frank (hereafter referred to as appellee) that by section 522, Burns 1908, the appellant was incompetent to testify to any matter occurring prior to the death of Gus Frank, and that for this reason the evidence of appellant, Snyder, was properly excluded, and that with his evidence out there was no evidence showing that he was the agent of Gus Frank in buying the stock for which the $520 note was claimed to have been given; that any statements which he may have made to the witness Haines were not competent for such purposes, for the reason that the declarations of an agent are not competent evidence to establish the fact of the agency. It is apparent, therefore, that the correctness of each ruling depends on whether or not, by section 522, Burns 1908, appellant is rendered incompetent to testify to any matter that occurred prior to the death of Gus Frank.

This section is as follows: “In all suits by or against heirs or devisees, founded on a contract with or demand against the ancestor, to obtain title to or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor.”

It is conceded in appellees' brief that Gus Frank, before his death, viz., on June 16, 1909, made disposition of his property, real and personal, among his four children. He executed deeds to his real estate and assigned notes, certificates of deposit, certificates of stock in various banks, and other corporations and placed these in separate envelopes addressed to each of his children, and “delivered the four envelopes to Leslie Lamb, cashier of the First National Bank of Petersburg, Indiana, to be delivered to his children after his death.” These envelopes were delivered by Mr. Lamb after the death of Gus Frank, and in the envelope delivered to appellee was found the $520 note involved herein, indorsed as above set out.

[1] Some mention is made in appellee's brief of a will being...