W. T. Rewleigh Co. v. Snider

• Citation: 194 N.E. 356,207 Ind. 686
• Decision Date: 26 February 1935
• Docket Number: 26185
• Parties: W. T. REWLEIGH CO. v. SNIDER et al
• Court: Supreme Court of Indiana

194 N.E. 356

207 Ind. 686

W. T. REWLEIGH CO. v. SNIDER et al

No. 26185

Supreme Court of Indiana

February 26, 1935

Appeal from Floyd Circuit Court; John M. Paris, Judge.

Wilmer T. Fox, of Jeffersonville, and Walter V. Bulleit, of New Albany, for appellant.

Warren B. Allison, of Jeffersonville, and Stotsenburg, Weathers & Minton, of New Albany, for appellees.

OPINION

FANSLER, Chief Justice.

This was a suit by appellant against T. C. Wharton as principal and Courtney S. Snider and Oma Lentz as sureties, on a contract, whereby the sureties guaranteed the payment of any balance due for goods previously sold, and payment for any goods sold during the year 1925, by appellant to T. C Wharton. There was a trial by jury, and verdict and judgment in favor of appellant against appellee Wharton for $ 700 and judgment in favor of appellees Snider and Lentz.

Appellant assigns as error the overruling of its demurrer to the amended second paragraph of answer of appellees Snider and Lentz. By this paragraph it is alleged that the contract sued upon 'was made and signed by them on Sunday, * * * and therefore as to them void.' Appellant contends that the paragraph is bad for failing to allege that the contract was either delivered to or accepted by appellant on Sunday. The allegation that the contract was made is equivalent to an allegation that it was executed, and the word 'executed' includes delivery. It is further contended that this paragraph of answer does not deny that the contract was accepted in writing by appellant on January 12th, which was not Sunday, and therefore that it is not a sufficient allegation that it was executed on Sunday, and hence does not state a defense. We cannot concur in this view. We deem the answer a sufficient allegation that the contract was executed on Sunday, and not upon the day alleged in the complaint. It therefore states a defense, and the demurrer was properly overruled.

Error is assigned upon the overruling of appellant's demurrer to the amended third paragraph of answer of appellees Snider and Lentz. This paragraph of answer alleges that the contract or bond sued upon was procured by plaintiff from defendants by fraud and false representation, in that, prior to the making of said contract, plaintiff falsely and fraudulently represented to defendants that appellee Wharton was not indebted to the plaintiff, and that the extent and limit of the credit which they would at any time extend to Wharton would not exceed the sum of $ 100; that defendants relied upon the truth of these representations and were deceived.

The complaint is based upon a written contract. It provides that, in consideration of appellant extending further credit to Wharton, the sureties unconditionally promise and guarantee the full and complete payment 'of the balance due or owing said Seller for goods previously sold and delivered,' and 'the full and complete payment of all moneys due or owing or that may become due or owing.' It is further provided that the contract is conclusive, and that 'any statement or representation made by any person as to the undertakings of the surety or sureties other than as herein expressed * * * shall in no wise affect the rights of the Company.' The written contract must be treated as embodying all of the agreements of the parties, and one who signs such a contract is bound to know the extent of his liability thereunder, and is bound by the terms of the contract.

Appellees contend that the error in overruling the demurrer was harmless, since the court withdrew the answer from the consideration of the jury by instruction. This is true.

Error is assigned upon the overruling of appellant's demurrer to the second paragraph of answer of appellee Wharton. By this paragraph of answer appellee Wharton alleged that the goods delivered to him and sued for were delivered to him as agent for the plaintiff, and that he delivered the goods to prospective customers upon instructions from the plaintiff, and that they were not returned, and that he was therefore entitled to credit for the amount sued for. The contract sued on expressly provides that appellee Wharton is not the agent or representative of appellant for any purpose, and that the contract includes 'and shall constitute the sole, only, and entire agreement between the parties hereto,' and that it shall not be changed or modified except the modification shall first be specifically reduced to writing and signed by both parties. The answer in question does not rely upon any further written contract. Appellee says nothing in support of this answer, but contends that it purports to answer the entire complaint on the merits; that the jury found for appellant, and against appellee Wharton on the issue thus formed; and that, even though the answer was bad, the ruling on demurrer is harmless. As we view the answer in its entirety, it attempted to assert agency upon the basis of instructions contained in certain literature sent to appellee by appellant, containing advice and suggestions as to sales of appellant's products. The principal contract provides, however, that 'nothing contained in any of the aforesaid literature * * * shall be taken in any way to alter, modify, change or affect this agreement, and shall only be considered as educational and advisory; * * * it being mutually and fully understood and agreed that the Buyer is not an agent or representative of the Seller for any purpose.' If we correctly interpret the theory of the answer, the demurrer should have been sustained.

Under the assignment that the court erred in overruling its motion for a new trial, appellant asserts that the verdict is not sustained by sufficient evidence. The evidence, however, is not in the record. The motion for new trial was overruled at the January term of court, and no time for filing a general bill of exceptions containing the evidence was asked for or granted. At the March term judgment was rendered, and sixty days' time granted to prepare and file a general bill of...