Wickizer v. Bolin

• Citation: 22 Ind.App. 1,53 N.E. 238
• Parties: WICKIZER et al. v. BOLIN.
• Decision Date: 07 March 1899
• Court: Court of Appeals of Indiana

22 Ind.App. 1

53 N.E. 238

WICKIZER et al.

v.BOLIN.

Appellate Court of Indiana.

March 7, 1899.

Appeal from circuit court, Marshall county; A. C. Capron, Judge.

Action by James F. Bolin against Albert B. Wickizer and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Charles Kellison and Charles P. Drummond, for appellants. Martindale & Stevens, for appellee.

HENLEY, J.

This action was commenced by appellee as plaintiff in the lower court. The complaint was in two paragraphs, the first paragraph of which is upon a promissory note, the second upon a bill of sale. Appellants' answer consists of four paragraphs,-the first, a general denial; the second, a plea of non est factum, addressed to the first paragraph of the complaint; the third paragraph of answer avers the facts connected with the whole transaction, and is addressed to both paragraphs of complaint; the fourth is an answer of non est factum, addressed to the second paragraph of complaint. A demurrer for want of facts was overruled to each paragraph of answer. A reply to general denial to the second, third, and fourth paragraphs of answer closed the issues. There was a trial by jury, and verdict in favor of appellee. Appellants' motion for a new trial was overruled, and judgment rendered in favor of appellee upon the verdict of the jury.

Appellants have assigned as error the overruling of their motion for a new trial, and this is all the alleged error discussed by counsel for appellants in their able brief filed herein. The questions discussed arise wholly from the failure of the lower court to permit appellants to introduce certain evidence, and the giving and the refusal to give certain instructions. The record presents all the questions argued by appellants' counsel. On account of the questions presented being principally as to the admissibility of evidence, we think it proper that the opinion should fully show the issues as they are presented to this court by the record. In the first place, the execution of both the instruments declared upon was denied under oath. The third paragraph of answer, purporting to give all the facts surrounding the execution of both the note and bill of sale, was, in substance, as follows: That each of the appellants had, prior to the 30th day of November, 1895, obligated himself as surety for the appellee on certain promissorynotes, and were so bound on said last-mentioned date, all of which notes are fully described in the answer. That appellee was at said time financially embarrassed, and in failing circumstances, and was being pressed by his creditors to pay said obligations upon which he was principal and these appellants were sureties. That appellee was at the time the owner of a stock of goods situated in the town of Tipton, Ind., upon which stock of goods there was a chattel mortgage executed by appellee to one John F. Browen, assignee of John W. Hobbs, given to secure the payment of a claim upon which there was on the 30th day of November, 1895, the sum of $637.55 due and unpaid. That the holder of said chattel mortgage was clamoring for payment, and was about to take possession of the stock of goods. That appellee, in order to secure and protect appellants, who had never seen said stock of goods, and knew nothing whatever of their value, proposed to appellants to turn over to them said stock of goods at Tipton, Ind., under the following terms and conditions, which were on the said 30th day of November, 1895, fully agreed upon and accepted by appellants upon one side and appellee upon the other. Appellants were to take said goods subject to the chattel mortgage, and sell the same at the best possible price, subject to the approval of appellee, and apply the proceeds first to the payment of the mortgage indebtedness, and the balance to the payment of the notes and obligations upon which appellants were liable as sureties of appellee, and, if any balance was left over after such payment, it was to be returned to the appellee. In pursuance of said agreement, appellee had a writing drawn up purporting to be a bill of sale, the expressed consideration therein being $2,600, which was the amount which appellee represented said stock of goods to be worth. At the same time appellee had prepared a note, to be signed by these appellants, calling for the sum of $1,971, which represented the difference between the value of the goods as estimated by appellee and the mortgage indebtedness. This note appellee requested appellants to sign. Appellants objected to the bill of sale and note as not evidencing the contract and agreement between them and appellee, but they signed said note, and appellee signed said bill of sale, with the express understanding and agreement that said note was not to be delivered to appellee, but that the note, together with the bill of sale, were to be placed in an envelope, and sealed, and left in the custody of the Citizens' Bank of L. Bose & Co., at Argus, Ind., and were to remain in said bank, and were not to be taken therefrom; and said note was not to be delivered to appellee except with the consent and in the presence of appellee and all these appellants; and that, after said goods had been sold, and the chattel mortgage had been paid, and the expenses of the sale had been deducted, and the notes paid upon which appellants were surety for appellee, whatever balance there remained was to be paid to appellee, and said note of $1,971 was to be destroyed, and to be of no effect; and in like manner said note was to be of no force or effect should the price received for said goods be insufficient to pay the mortgage indebtedness and the notes upon which appellants were sureties for appellee. Said note and bill of sale were deposited in said bank as so agreed. Said bill of sale and note were signed and deposited in the bank to satisfy appellee, who claimed that the stock of goods was worth $2,600; and were so signed and deposited under the express agreement that neither of them were to be of any force or effect in the event that said goods should sell for a less amount than would be necessary to pay the mortgage debt, the expenses of sale, and the debts upon which appellants were obligated as sureties for appellee. That the event upon which the execution of said bill of sale and note depended never occurred, because said goods were not sold for a sufficient amount to pay the mortgage debt, expenses of sale, and the debts upon which appellants were the sureties of appellee. But in accordance with their understanding and agreement, and with the consent and acquiescence of appellee, the appellants sold said goods to one James M. Wickizer for $1,700, which was the full value, and with said $1,700 paid the expense of the said sale, the mortgage debt, and applied the balance upon the notes upon which appellants were surety for appellee. That said balance left after the payment of the mortgage indebtedness and costs of sale was wholly insufficient to pay the debts upon which appellants were obligated as sureties for appellee, and there was nothing left to pay over to appellee under their said agreement. That, as soon as it was ascertained that the balance left from the sale of the goods after paying the mortgage indebtedness was not sufficient to pay the said surety debts, the appellants, together with appellee, went to the said bank, and said note and bill of sale were taken from said envelope, and delivered to appellants in the presence of and with the consent of appellee, and said appellee then and there stated that everything between the appellants and appellee was settled. That appellee, at the time said note was signed, and during all the time it was in said bank, and at the time it was delivered to appellants, was insolvent, and still remains insolvent.

Thirty-seven of the reasons assigned in appellants' motion for a new trial are based on the action of the lower court in refusing certain evidence offered by appellants. In nearly all of these 37 reasons the action of the court complained of consisted in excluding evidence which tended to disprove the execution of the note and bill of sale by showing that they had never been...