Wheeler v. Rohrer

• Decision Date: 26 January 1899
• Docket Number: 2,634
• Citation: 52 N.E. 780,21 Ind.App. 477
• Parties: WHEELER v. ROHRER ET AL
• Court: Indiana Appellate Court

52 N.E. 780

21 Ind.App. 477

WHEELER v. ROHRER ET AL

No. 2,634

Court of Appeals of Indiana

January 26, 1899

From the Marion Circuit Court.

Affirmed.

Stevenson Shirts & Fertig, and Pickens, Cox & Kahn, for appellant.

Hord & Perkins, for appellees.

ROBINSON J. Comstock, J., took no part in this decision.

OPINION

ROBINSON, J.

Appellees sued appellant, Philip S. Wheeler, and one Agnes W. Templeton, for the value of certain goods sold Templeton. Templeton confessed judgment. Wheeler answered in two paragraphs, to which a reply in denial was filed. Judgment in appellees' favor. The questions raised may all be considered in a discussion of the special finding of facts.

The special finding shows that in 1895 appellees, as the Germantown Cigar and Tobacco Company, were wholesale dealers in tobacco; that Agnes W. Templeton, a retail dealer, desired to buy goods of appellees, which appellees refused to sell to her on credit unless she would give acceptable security; that thereupon, in order to induce appellees to sell goods to her on credit, she and Wheeler executed to appellees a certain undertaking or bond; the bond, dated May 18, 1895, and signed by Templeton and Wheeler, provided that Templeton and Wheeler bound themselves to appellees in the penal sum of $ 1,000 for the payment of which they bound themselves jointly and severally; that the condition of the bond "is that as the above bound Philip S. Wheeler has by this instrument agreed to indemnify or make good any loss by reason of nonpayment for goods received and sold by A. W. Templeton on account of the above named Germantown Cigar and Tobacco Company, as their account may appear, now, if the said A. W. Templeton will not pay for all goods shipped by the Germantown Cigar and Tobacco Company when ordered by said A. W. Templeton, then said Philip S. Wheeler agrees to pay and indemnify said J. H. Rohrer, J. A. Brown, A. C. Kercher, Joe Endress, Jr., and David Rohrer, known as the Germantown Cigar and Tobacco Company, and all persons interested in the said agreement, against all demands by reason of an agreement or covenant in the contract for the purchase of cigars from said Germantown Cigar and Tobacco Company, then this obligation is to be void, else to remain in force;" that the bond was delivered to appellees for the purpose of inducing appellees to sell goods to Templeton on credit; that appellees, after receiving the bond and making inquiries as to the financial responsibility of Wheeler, accepted the same, and in consideration thereof, were induced to, and did, sell and deliver to Templeton, in pursuance thereof, from the 22nd day of May to the 31st of July, 1895, goods amounting to $ 1,056.50; that Templeton paid $ 145 of that sum, and that the balance ($ 911.50) is wholly unpaid, and has been due since November 1, 1895; that after the 29th day of July, 1895, appellees refused to sell Templeton any more goods without additional security, and thereupon, in order to induce appellees to continue to sell goods to her on credit, Templeton and Wheeler, on September 3, 1895, executed a second bond, whereby Templeton, as principal and Wheeler, "as surety for said principal," bound themselves jointly and severally to appellees in the penal sum of $ 1,500; that the condition of the bond was that, as Templeton "has entered into a contract with the Germantown Cigar and Tobacco Company whereby the said company agrees to and does furnish cigars from time to time to said Templeton, * * * now, if the said Templeton will well and truly pay all amounts legally due for goods and cigars purchased, * * * then the bond to be void, otherwise the parties hereto agree to, and do indemnify said Germantown Cigar and Tobacco Company against any and all loss that may arise from said contract, and all persons interested in said contract are hereby secured against all demands by reason of an agreement or covenant in the contract for the purchase of cigars" from the company; that, in consideration of said bond, appellee sold and delivered to Templeton, between September 11, 1895, and November 16, 1895, goods amounting to $ 277.75, which sum is long past due and wholly unpaid; that in the fore part of July, 1895, Wheeler was notified by appellees that Templeton had failed to pay for the goods she had purchased under the bond dated May 18, 1895, or for any part of them, and Wheeler requested appellees to continue to sell her goods thereunder; that in December, 1895, Wheeler was notified of the amount Templeton had failed to pay for goods purchased under the bonds,-- $ 1,189.25, and that the same was due; and that payment was demanded from Wheeler, but he refused to pay. The finding further states that Templeton appeared in open court in person, and confessed judgment for the full amount sued upon in appellees' complaint, and that judgment was rendered against her. The court stated as conclusions of law that appellees were entitled to judgment against Wheeler for $ 1,296.28.

There were two paragraphs of complaint, each counting on a separate bond. The statement of the condition of the bonds shows the purpose for which they were given. The contracts whose fulfilment these bonds were given to secure were the contracts Templeton had with these appellees to purchase goods. The bonds were the inducement for appellees to give Templeton credit, and if she carried out her contract with appellees, and paid for the goods, the bonds were void. Each paragraph of complaint is accompanied by a bill of particulars showing the account appellees held against...