W.A. Flint Co. v. John V. Farwell Co.

• Decision Date: 14 March 1922
• Docket Number: No. 23800.,23800.
• Citation: 134 N.E. 664,192 Ind. 439
• Parties: W. A. FLINT CO. et al. v. JOHN V. FARWELL CO.
• Court: Indiana Supreme Court

192 Ind. 439

134 N.E. 664

W. A. FLINT CO. et al.

v.JOHN V. FARWELL CO.

No. 23800.^*

Supreme Court of Indiana.

March 14, 1922.

Appeal from Circuit Court, Knox County; Thomas B. Coulter, Judge.

Action by the John V. Farwell Company against the W. A. Flint Company, William A. Flint, and others, on a promissory note, and to foreclose a mortgage given to secure it. Judgment for the plaintiff against all defendants and defendants W. A. Flint Company, W. A. Flint, and another appeal. Judgment against defendants William A. Flint and another reversed.

Wm. A. Cullop, of Vincennes, Arnold J. Padgett, of Washington, Ind., and Arthur A. Clark, of Vincennes, for appellants.

Ewing R. Emison, William S. Hoover, and Clarence B. Kissinger, all of Vincennes, for appellee.

EWBANK, C. J.

Appellee sued the appellant company, the two individual appellants, and two others, seeking to recover on certain promissory notes and a mortgage on real estate. One of the defendants, who had not executed any of said instruments, but who had accepted a conveyance of the real estate containing a covenant to pay the mortgage debt, was defaulted. Upon issues joined on answers by each of the three appellants and another defendant who did not appeal, and replies thereto, and upon a cross-complaint by the appellant William A. Flint and an answer thereto by appellee, the case was tried by the court without a jury. The court found in favor of appellee as against all of the defendants, including appellants, and rendered a personal judgment against all of them for $27,105.85, without relief, and decreed the foreclosure of the mortgage and sale of the mortgaged real estate. Each of the appellants filed a motion for a new trial, which was overruled, and they excepted, and each of them has assigned that ruling as error.

The causes for a new trial relied on by the W. A. Flint Company are the admission in evidence of an alleged note for $30,000 purporting to have been signed “W. A. Flint Company, by W. A. Flint, Pres., D. H. Crabbs, Secy.,” and of the alleged mortgage purporting to secure that note, and purporting to have been signed in the same manner, and acknowledged by said Flint and Crabbs, as president and secretary of the company, respectively, without having made preliminary proof of the execution of either instrument, except by proof that William A. Flint was the president of the company, that he signed both papers as such president, and that the signature on each was his signature as president.

The errors relied on by the appellants William A. Flint and Harold P. Flint, respectively, are overruling their motion for a new trial by jury of the issues joined on their answers to the complaint, overruling the separate motion of William A. Flint for a trial by jury of the issues joined on his answers to the second paragraph of the complaint, and overruling his separate motion for a trial by jury of the issues joined on his cross-complaint.

The first paragraph of the complaint alleged, in substance, that the appellant company, the appellants William A. and Harold P. Flint, and one David H. Crabbs executed a promissory note dated June 14, 1913, payable to the order of Francis F. Ferry five years after date, without relief, which contained a recital that “this is collateral security to cover any indebtedness now owing to John V. Farwell Company (the appellee) or to be hereafter contracted between the date of this note and the corresponding period in 1918”; that to secure the note the appellant company executed a mortgage of the same date conveying certain real estate to said Francis F. Ferry, subject to a prior incumbrance of $10,000, by which it convenanted to pay insurance, taxes, and improvement assessments; that four years and a half later the said Francis F. Ferry assigned the note and mortgage to appellee; that certain insurance, taxes, and assessments became delinquent, and appellee was compelled to pay them, and that the mortgage debt was in default.

The second paragraph of the complaint alleged, in substance, that on June 14, 1913, the appellant company was indebted to appellee on an open account and on a note, and that it applied to appellee for a further advancement of merchandise and a loan, and for an extension of time on its said note; that appellee entered into a written agreement with these appellants and David H. Crabbs to the effect that said extension of time, loan, and advancement of merchandise were to be made by appellee to the appellant company, amounting to $30,000, and that for the debt appellee would take 12 notes signed by appellants and D. H. Crabbs, all dated June 14, 1913, for $2,500 each, payable at intervals of four months from May 1, 1914, to January 1, 1918, inclusive; that said contract recited that the above-mentioned note for $30,000 and second mortgage on lands of the appellant company had been executed “to said Francis F. Ferry for the benefit of the said John V. Farwell Company, *** to be by him assigned to said John V. Farwell Company, to be held by it as security to cover the aforesaid indebtedness of $30,000 owing by said parties of the first part in 12 promissory notes, heretofore described, *** and to secure payment of any additional note or notes, or renewals of existing notes *** or loans hereafter made by said John V. Farwell Company, to said parties”; that the note for $30,000 and the mortgage securing it were executed and afterward assigned to appellee, as was alleged in the first paragraph of complaint; that the debt due on said 12 notes was in default, and that the mortgage secured such debt.

The W. A. Flint Company answered separately by a denial, plea of payment, plea of no consideration, and of release by certain alleged action of the bankruptcy court, and by verified denials that it executed either the note for $30,000 or the mortgage securing it. The other appellants and David H. Crabbs answered by a denial and plea of payment, and filed partial answers as to the $30,000 note, denying that there was any consideration for its execution, together with pleas that these appellants were mere sureties of the W. A. Flint Company upon all of the notes sued on, and that, by reason of alleged extensions of the time for payment and other facts stated, they had been released, and that appellee had received and accepted property of the W. A. Flint Company directly, and through its alleged agents, in amounts exceeding the debt sued for, which should be credited on such debt. A cross-complaint was filed by William A. Flint which alleged that the appellee had entered into certain contracts with him, and had breached said contracts in a manneras stated, and thereby had damaged him in the sum of $143,000, and that said sum was due and unpaid. The appellee replied to these answers by a denial, and answered the cross-complaint by a denial, and by a special plea that William A. Flint was not...