Stiefler v. McCullough, 13880.
| Decision Date | 27 February 1931 |
| Docket Number | No. 13880.,13880. |
| Citation | 174 N.E. 823,97 Ind.App. 123 |
| Parties | STIEFLER v. McCULLOUGH. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Madison Circuit Court; Wm. Sparks, Special Judge.
Action by Neel M. McCullough against Joseph Stiefler, with a cross-complaint by defendant. Judgment for plaintiff, and defendant appeals.
Reversed.
Philip B. O'Neill, of Anderson, for appellant.
Bagot, Free & Bagot, of Anderson, for appellee.
This was an action by appellee in a complaint of two paragraphs; the first alleging liability under a written contract; the second alleging a partnership insolvency, and praying for the appointment of a receiver. Appellant filed two paragraphs of answer, one a general denial and the other a cross-complaint. Appellee filed answer in general denial to the second paragraph of appellant's answer, also a reply and answer in general denial. Appellee then filed a supplemental first paragraph of complaint. Appellant then filed an additional paragraph of answer alleging no legal consideration. Appellee then dismissed his second paragraph of complaint.
The court rendered judgment for the appellee in the sum of $2,240 and the costs, and found that appellant take nothing by his cross complaint. A motion for a new trial specifying that the decision was contrary to law, (b) the decision was not sustained by sufficient evidence, and also other errors in the introduction of evidence and exhibits which are not of any moment. The overruling of this motion is assigned as error here.
It may be noted here that there was no application for a special finding of facts and conclusions of law.
The appellant had been the manager of a chain store of the credit apparel type in Anderson for six or seven years, during which time the banking business of his store had been handled by the Citizens' Bank of which appellee was president. The appellant during his residence there had purchased a house from the bank for the sum of $7,500, on which the above bank had a second mortgage for $4,500 and had also had other dealings with the bank connected with his personal financial affairs. The appellant conceived the idea of going into business alone when a favorable location presented itself. He talked to the appellee as the president and loaning officer of the bank at various times for a period of some ninety days, told him the prospects, and asked for a line of credit to the extent of $5,000 which was assured him by the appellee. The appellee then in the name of the bank took a third mortgage on the house of appellant and wife, which had been sold them by the bank, and on which transaction the appellee had made a personal profit of $1,000 (indicating that they thought it had some value above the purchase price), an assignment of a certificate of stock of the par value of $1,000, and a pledge of diamonds, worth by uncontradicted evidence $2,000. They also signed a chattel mortgage covering all the stock and fixtures that were not yet purchased, but were to be purchased with the borrowed money. The bank then advanced $3,000, and appellee told appellant he would see about the other $2,000 later. Approximately one month later the appellant told appellee he had “purchased goods to the extent of the money he would let me have in addition to the $3,000.00,” and that appellee ’ This startling bit of testimony is not specifically denied. Then this contract was dictated by the appellee in his office at the bank, the contract reading in the first person as though the appellant himself had written it, phrases of which he (the appellee) had “copied out of a book,” and which contract the appellant signed. Then, the appellee had appellant sign it before a notary, who was an employee of the bank, as “the free act and deed” of said appellant. Which contract is as follows:
“Anderson, Ind. Dec. 22, 1924.
“For value received, and in consideration of your procuring credit for me, which enabled me to start in business for myself, and in which I am now engaged, I hereby promise and agree to pay on the first day of each calendar month hereafter the sum of One Hundred Dollars ($100.00) so long as I may be engaged in the Cloak and Suit and Mens Furnishing Business in the City of Anderson, Indiana, to Neel M. McCullough at the Citizens Bank, City.
“The above to constitute a full payment for services rendered, and for any and all interest which you may have acquired, by reason of such assistance mentioned above; it being further understood that there is no further obligation on your part except such as you may wish to render me from time to time.
“It is further understood that this obligation shall be binding upon my heirs, executors, administrators or assigns, and that this contract may be assigned by you.
“State of Indiana, County of Madison-SS.:
“Personally appeared before me the undersigned, a Notary Public, in and for the county and state aforesaid, one Joseph Stiefler, who acknowledged the execution of the above contract as his free act and deed.
“My Commission expires Nov. 21, 1926.”
There was introduced in evidence the following guaranty:
“Oct. 30, 1924.
“The Citizens Bank,
“Anderson, Indiana.
“For value received I hereby guarantee the payment of any monies advanced to Joseph Stiefler on his personal notes, except his mortgage note now owing, as and when same may mature and until such guarantee is revoked by me with your consent.
“N. M. McCullough.”
Appellee testified that it was filed with the bank, but it does not bear any indication that it ever was filed, accepted, approved, or consented to by the board of directors of such bank or that they ever saw it. And appellee testified that the board of directors knew very little about it. No minutes of any meeting relating to the guaranty were introduced or attempted to be introduced by the appellee.
The appellee prosecuted the action on the theory that in consideration of the furnishing of a line of credit by him he was to have a half interest in the business and that he later gave up his half interest for the above contract for $100 a month. Appellee specifically at several different times said that “he did not want to go into the business.”
There is only the testimony of the two parties and the documentary evidence, as the testimony of a witness for the appellee discloses nothing of any weight or value.
[1][2] Appellee contends that the filing of a bill of exceptions should be shown by order book entry, but the filing of same may also, in some cases, be shown by the certificate of the clerk. As was stated by the Supreme Court in Howe v. White (1904) 162 Ind. 75, 69 N. E. 684: “The fact that the Bill was filed in the cause, and the date of such filing, must be...
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