Todd v. Guffin

• Court: Indiana Appellate Court
• Writing for the Court: IBACH
• Citation: Todd v. Guffin, 55 Ind.App. 605, 104 N.E. 519 (Ind. App. 1914)
• Decision Date: 10 March 1914
• Docket Number: No. 8350.,8350.
• Parties: TODD v. GUFFIN.

55 Ind.App. 605

104 N.E. 519

TODD

v.GUFFIN.

No. 8350.

Appellate Court of Indiana, Division No. 2.

March 10, 1914.

Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Action by Matilda C. Guffin, as executrix of Henry H. Guffin, deceased, against Lemuel S. Todd. From a judgment for plaintiff, defendant appeals. Affirmed.

Ira W. Christian and Floyd G. Christian, both of Noblesville, for appellant. Shirts & Fertig, of Noblesville, and Gifford & Gifford, of Tipton, for appellee.

IBACH, J.

The complaint was in two paragraphs, the first declaring for a balance due upon a contract between appellee's decedent and appellant, for dipping gravel, the second declaring upon account for the work and labor performed by her decedent in dipping gravel for appellant. There was an answer of general denial and plea of payment and reply in general denial. The cause was tried by the court. The errors assigned and presented to this court are that the court erred in overruling appellant's motion for new trial upon the grounds that its decision was contrary to law and not sustained by sufficient evidence, and that the court erred in his conclusions of law upon the facts found.

The finding of facts is, in substance, as follows:

(1) On September 10, 1908, defendant Lemuel S. Todd and Herman Barlow entered into and executed in duplicate a certain contract in writing, of which a copy is set out, and by which Barlow agreed to dip or hoist 4,000 cubic yards of gravel on the Ed Rawlings road, for which Todd was to pay him 27 1/2 cents per yard, 80 per cent. to be paid as the commissioners gave estimates on the road, and the remaining 20 per cent. as soon as the gravel was dipped.

(2) On October 21, 1908, Barlow sold and assigned his gravel dipping machinery and the uncompleted part of said contract and another contract to decedent, Henry H. Guffin, by and in accordance with the terms of a certain deed of sale and contract of writingexecuted between the parties, of which a copy is set out, which states that Barlow sells and delivers all of his hoisting machinery, and all his rights, titles, interests, and benefits in the said contract between him and Todd, above mentioned, and the other contract, and appoints Guffin his agent to act in his stead in the collection of all sums of money accruing under said contracts, and authorizes and empowers said Guffin to do the things and perform the service incumbent upon Barlow in said contracts, in consideration of which sale and transfer of rights Guffin pays to Barlow $1,000, and gives to him his promissory note for $250, and is to account to him at the rate set out in the contract assigned for the amount of gravel now hoisted, for the measuring of which provision is made.

(3) At the time of making said last-named bill of sale and contract, said Barlow executed a power of attorney to said Guffin, empowering him to collect all sums of money due said Barlow under said contract with Todd, which is in the words and figures following:

“Power of Attorney.

“Know all men by these presents, that I, Herman Barlow of Johnson county, Indiana, constitute and appoint Henry H. Guffin of Marion county, Indiana, my true and lawful attorney and agent for the fulfillment of a certain contract heretofore entered into on September 10, 1908, with L. S. Todd and also with G. W. Bacon, for the hoisting of gravel, which contract is hereto attached and made a part hereof, and by such power herein granted, I authorize the said Henry H. Guffin to do all of said work therein contracted by me to be done and collect all money under said contract due to me and to receipt for the same in my name and stead, and I bind myself to such acts by him done the same as if I were present and did them myself. Witness my hand and seal this 21st day of October 1908, Herman Barlow.”

(4) There was dipped from said pit and received by defendant, Todd, and used in the construction of said Rawlings road, in all, 3,840 cubic yards of gravel, being all that was required for the completion of said road, which was completed and the final estimate paid to defendant, Todd, as contracted on September 6, 1909.

(5) Of said amount there was dipped before the execution of said contract and bill of sale to decedent, Guffin, 1,049 yards.

(6) On December 8, 1908, there was deposited by defendant Todd in the Farmers' Bank of Sheridan the sum of $528 and a certificate of deposit issued therefor in favor of said Barlow, and at the same time said bank made a draft against said deposit in favor of said Barlow for the full sum of $528, which draft was indorsed by said Guffin under said power of attorney and paid by said bank December 18, 1908, and applied by said Guffin as a payment by defendant on said gravel...