Wheeler v. Rohrer

• Citation: 21 Ind.App. 477, 52 N.E. 780
• Case Date: January 26, 1899
• Court: Court of Appeals of Indiana

21 Ind.App. 477
52 N.E. 780

WHEELER
v.
ROHRER et al.

Appellate Court of Indiana.

Jan. 26, 1899.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by John H. Rohrer and others against Philip S. Wheeler and another. Defendant Wheeler appeals. Affirmed.

[52 N.E. 781]

George Shirts and Pickens, Cox & Kahn, for appellant. Hord & Perkins, for appellees.

ROBINSON, J.

Appellees sued appellant, Philip S. Wheeler, and one Agnes W. Templeton, for the value of certain goods sold said 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 & 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 said Wheeler executed to appellees a certain undertaking or bond; that the bond, dated May 18, 1895, and signed by Templeton and Wheeler, provided that the said 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 said bond was delivered to appellees for the purpose of inducing appellees to sell goods to Templeton on credit; that appellees, after receiving said 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 said Templeton, in pursuance thereof, from the 22d day of May to the 31st of July, 1895, goods amounting to $1,056.50; that said Templeton paid $145 of said 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 said Templeton any more goods without additional security, and thereupon, in order to induce appellees to continue to sell goods to her on credit, said 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...