Wheeler v. Hawkins

• Citation: 101 Ind. 486
• Decision Date: 23 April 1885
• Docket Number: 10,438
• Parties: Wheeler v. Hawkins, Assignee, et al
• Court: Supreme Court of Indiana

101 Ind. 486

Wheeler v. Hawkins, Assignee, et al

No. 10,438

Supreme Court of Indiana

April 23, 1885

From the Marshall Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to sustain the demurrer to the complaint.

W. B Hess, for appellant.

A. C Capron, for appellees.

OPINION

Howk J.

The first error of which complaint is here made by the appellant Wheeler, is the overruling of his demurrer to the complaint of the appellee, Hawkins, assignee in the voluntary assignment of one Thomas Shakes.

This complaint was filed in the court below on the second day of April, 1877, and therein the appellee, Hawkins, as sole plaintiff, alleged that on the eleventh day of February, 1874, he was appointed assignee of one Thomas Shakes, a failing debtor in Marshall county; that he took possession of the assets of Shakes, consisting of a large amount of notes and accounts, a broken stock of merchandise, and one hundred and sixty acres of land, upon which there was due the appellant, Wheeler, for a balance of purchase-money, about three thousand dollars; that claims to the amount of, to wit, $ 5,000, were filed against the assignor's estate, besides the appellant's claim; that after appellee took possession of such assets he converted them into money as rapidly as he could, and the entire amount so realized from the personal property was about $ 1,500; that thereupon, after various consultations with some of the creditors, it was thought expedient to pay the first instalment due on appellant's mortgage and prevent a sale thereunder, and for the appellee to procure an order of sale and endeavor to sell the real estate; and this was believed to be the only feasible way to obtain a reasonable amount of assets, and the best dividends for the creditors; that, acting under this belief, the appellee, on the 25th day of August, 1874, paid the appellant the sum of $ 941.15, the principal and interest then due, and the foreclosure was delayed in order that appellee might obtain from the proper court an order sanctioning such payment, and an order for the sale of such land, which orders it was then believed the court would make; that it was the understanding and agreement between the appellee and the appellant, that, if the court would not so authorize such payment, the money was to be repaid to appellee by the appellant; that such payment was so made by appellee with the understanding and belief that the court would authorize him to pay the money, and that the creditors would also consent thereto.

But the appellee averred, that, after he had made such payment, he procured an order for the sale of such land, and reported to the court his action in the payment of such money to the appellant, and asked the confirmation thereof, which report and request were resisted by some of the creditors, and his action had not been confirmed, and he believed it would finally be disapproved by the court and repudiated by the creditors; that, in all his actions relating to his assignor's estate, and particularly in the payment of such money to the appellant, the appellee had acted in good faith, and, as he believed, for the interest of the creditors, and unless such money should be refunded to him by the appellant he would be entirely remediless, and be compelled to lose the sum so paid, which was trust money belonging to his assignor's estate, and known to be such by the appellant; and that the appellant refused, although often requested, to repay such money to the appellee. Wherefore, etc.

The first objection to the sufficiency of the complaint, urged in argument by the appellant's counsel, is that it fails to show an existing cause of action in favor of the appellee and against the appellant at the time the suit was commenced. This objection to the complaint, it seems to us, is well taken. The complaint counts upon an alleged parol agreement between the appellee and the appellant to the effect that, in consideration of the payment by appellee to the appellant of the amount then due the latter from the assignor of the former, the appellant would, if the proper court should not authorize such payment, repay such amount of money to the appellee. It was not alleged in the complaint that the money paid the appellant by the appellee, and for the recovery of which this action is prosecuted by the appellee, was not justly due at the time of such payment by his assignor to the appellant; indeed, the contrary was clearly shown by all the averments of the complaint. But the alleged parol agreement of the appellant, that he would repay the amount of such payment to the appellee in a certain event, is the only...