Wagner v. McCool

• Decision Date: 09 January 1913
• Docket Number: No. 7,779.,7,779.
• Citation: 52 Ind.App. 124,100 N.E. 395
• Parties: WAGNER v. McCOOL et al.
• Court: Indiana Appellate Court

52 Ind.App. 124

100 N.E. 395

WAGNER

v.McCOOL et al.

No. 7,779.

Appellate Court of Indiana, Division No. 1.

Jan. 9, 1913.

Appeal from Circuit Court, Vanderburgh County; C. A. De Bruler, Judge.

Action by Henry F. McCool and another against Margaret Wagner. Judgment for plaintiffs, and defendant appeals. Affirmed.

Henry Kister, of Princeton, and W. D. Robinson and W. E. Stilwell, both of Evansville, for appellant. Albert W. Funkhouser and Arthur F. Funkhouser, both of Evansville, for appellees.

HOTTEL, J.

The complaint in this case is in one paragraph and avers, in substance, that on the 6th day of January, 1908, the appellees were the owners of certain described real estate, which they on said day, by a deed of general warranty, conveyed to appellant to secure the payment of a note for the sum of $500 on said day executed by appellees as evidence of a loan then made by appellant to appellees; that at the same time, and as a part of the same transaction, the appellant, by her agreement in writing, which is set out in said complaint, agreed to reconvey said real estate to appellees upon full payment by them of the loan evidenced by said note according to the terms and conditions of said agreement; that said agreement provided that such note might be paid by appellees “on any annual anniversary of said contract”; that on the 5th day of January, 1909, appellees fully paid said note, and performed all the conditions of said contract on their part to be performed, and demanded a reconveyance of said real estate by quitclaim deed, which appellant refused. Appellees ask that appellant be compelled to execute to appellees a deed to the real estate so conveyed by them; that they be declared to be the owners of the same; and that their title thereto be quieted. A demurrer to this complaint was overruled, and appellant filed its answer in denial and a cross-complaint. The cross-complaint alleges the execution and delivery of the several instruments mentioned in the complaint, and sets out each, and avers, in substance, that the deed mentioned was executed to secure the payment of the note, and that it and the written agreement to reconvey were intended as a mortgage and should be so construed.

The averments of the complaint and cross-complaint are in substance and effect the same, except that the complaint avers the payment of the note and compliance with the terms of the agreement, and asks a reconveyance of the real estate according to the terms of the agreement, and that appellees' title be quieted therein, while the cross-complaint alleges that the note is unpaid, and other violations of the terms of said agreement, and asks that the deed be declared a mortgage and for a foreclosure and sale of the mortgaged premises to satisfy the debt. A denial to the cross-complaint closed the issues. Pursuant to the request of appellant, the court made a special finding of facts, and stated its conclusions of law thereon. On this finding there was judgment for appellees. A motion for new trial filed by appellant was overruled and exceptions properly saved. The assigned error presenting the ruling on this motion is the only question discussed in appellant's brief. In fact, the only question presented by appellant's counsel in their brief under their points and authorities, or discussed in their argument, is the sufficiency of the evidence to sustain the decision.

There is little dispute between appellant and appellees as to any issue of law or of fact except that relating to the question of the agency of the attorney to whom the appellees excuted the check given in payment of the debt represented by the note given by appellees to appellant. Inasmuch as the facts found by the court, except the ultimate fact of agency hereinafter referred to, are, in effect, conceded by appellant to be supported by the evidence, instead of attempting to set out the evidence, we set out the findings based thereon, which we think important in determining the question here involved. They are, in substance, as follows: Appellees about the last of December, 1907, having theretofore been informed that Louis J. Herman, a practicing attorney of the city of Evansville, had a client or clients who had money to loan, applied to said Herman for a loan of $500, and on the 6th day of January, 1908, appellees borrowed of appellant said sum for which they executed to appellant their note for that amount, payable three years after date at the Commercial Bank, Evansville, Ind., with 7 per cent. interest after date. Neither of appellees had any personal acquaintance with the appellant, had never seen her, and had no conversation or dealings with her, except through said Herman.

The execution and delivery of the other papers mentioned in the complaint are found and their contents set out, and the finding then proceeds as follows: “(4 and 5) That before making said loan the said Herman, on behalf of appellant, examined the abstract of title to the real estate described in said deed, and personally examined the property therein described with a view of determining its value as security for said loan, prepared the note, the deed, and the title bond hereinabove referred to, and took the acknowledgment on the deed as a notary public. (6) That, upon the delivery of the papers above set out, said Herman gave to the appellees his personal check for $490, retaining out of the loan $10 to cover his services in connection with making the loan. (7) That the appellant made said loan to appellees through said Herman either under instructions from herself directly or by one Bernard Ewers, in whose home appellant then lived as his housekeeper, and she continued to reside with said Ewers until his death on the 23d day of December, 1908. (8) In making said loan appellant intrusted the preparation of the note and other papers securing the loan to said Herman, and relied solely upon his judgment as to the title of the property described in the complaint, and as to the value thereof, and as to its sufficiency as security for said loan. (9 and 10) On and continuously since the 6th day of January, 1908, appellees have resided in the city of Evansville, where the property described in the complaint is located. (11) Said Herman disappeared from Evansville on the 9th day of January, 1909, and has not since been seen or heard of by either of the parties to this suit. (12) On the 1st day of July, 1908, appellees by the check of Henry McCool, payable to ‘Louis J. Herman, Atty.,’ paid to said Herman $17.50, the interest on said note, and appellant credited said payment by indorsement on the back of said note on the 6th day of July, 1908; said check was for $94.50 and included $77 interest on another loan, which the appellees then had from Bernard Ewers, as well as the $17.50 interest on the loan which they had received from the appellant. (13) Shortly before the 30th day of June, 1908, appellees offered to pay said Herman said note, but he refused to accept the same because said note was not then due, and, under the terms of the contract and loan, the appellees only had the privilege of paying said note at any annual anniversary thereof, and January 6, 1909, was such anniversary. (14) At and since the time the said loan of $500 was made to appellees, and from five to seven years prior thereto, the said Herman had acted for the appellant as her agent and attorney for the negotiation and collection of other loans in Vanderburgh county. (15) Said $500 note was never deposited at the Commercial Bank, Evansville, Ind., for payment or collection.” “(17) On the 5th day of January, 1909, appellee Henry F. McCool called at the office of said Herman in the city of Evansville for the purpose of paying said note; said Herman was not then at his office, but was at the courthouse, and by telephone directed said McCool to leave his check at the office of said Herman for $517.50 in full payment of said note and loan, and promised said McCool to send to his (McCool's) office the papers in connection with said loan, and to which he was entitled upon the payment of the same; that thereupon said, McCool delivered to said Herman his check on the Mercantile National Bank of Evansville, Ind., dated January 5, 1909, for $517.50, payable to ‘Louis J. Herman, Atty.’ A few days thereafter said papers, except a deed from appellant to appellees, were sent to appellees by the stenographer in charge of and employed in the office of said Herman. Said Herman had then left the city, and the stenographer was not authorized to send the papers to said McCool by appellant, or by said Herman. (18) At the time of the execution and delivery of said check, said Herman was in possession of said note for $500 and other papers connected with the loan, except a deed from said appellant to appellee. (19, 20, 21) Said note, with other papers relating to...