Williams v. Lowe
| Decision Date | 07 June 1916 |
| Docket Number | 9,054 |
| Parties | WILLIAMS v. LOWE |
| Court | Indiana Appellate Court |
From Carroll Circuit Court; James P. Wason, Judge.
Action by John C. Lowe against George A. Williams. From a judgment for plaintiff, the defendant appeals.
Affirmed.
George A. Williams, for appellant.
John H Cartwright and E. B. Sellers, for appellee.
This is an appeal from a judgment in appellee's favor for $ 629.24 in a suit brought by him on a check given to him by appellant for said amount, drawn on A. McCoy & Company's Bank, of Rensselaer, Indiana, and bearing date of April 16 1904. The transaction which gave rise to the suit has been before this court in two former appeals: Baughman v. Lowe (1907), 41 Ind.App. 1, 83 N.E. 255; Williams v. Lowe (1911), 49 Ind.App. 606, 97 N.E. 809. The complaint now involved is in two paragraphs. The facts leading up to and connected with the giving of said check as alleged therein are substantially as follows: Appellee was the plaintiff in a foreclosure proceeding in which certain land was ordered sold, and he became the purchaser at such sale and received a certificate of purchase therefor. Toward the close of the year for redemption, appellee gave this certificate to his attorneys, including appellant, who represented him in the foreclosure suit, so that they might have it to surrender to the redemptioner in case he redeemed from the sale. The owner paid to the clerk of the court the amount necessary to redeem said land and the latter paid it over to said attorneys on April 15, 1904. On the same day appellant deposited the funds so collected in the A. McCoy & Company's Bank, of Rensselaer, in his name. Appellee was notified of the redemption and he came to Rensselaer on April 16, 1904, to make settlement and appellant gave him his (appellant's) check on the A. McCoy & Company's Bank for the amount, less attorneys fees of $ 629.24. At the time this check was delivered to appellee the bank had closed for that day and did not afterwards open its doors for business and was later declared a bankrupt. On the following business day appellee placed said check in a bank at Monticello, Indiana, where he lived, for collection. This check was not presented to the bank on which it was drawn for the reason that such bank never opened after appellees received said check. Appellant was notified of such fact and payment of the check was demanded of him and he refused to pay. The only difference between the two paragraphs that we need mention is that the check in suit is set out as an exhibit to the first paragraph and is set out in the body of the second paragraph. Numerous answers were filed to each of said paragraphs, of which the first, second, tenth and eleventh, only are set out in appellant's brief. The first and second plead the six years statute of limitations to the first and second paragraphs of complaint, respectively, and a demurrer to each was sustained by the court. The ninth paragraph is a plea of no consideration. There was a trial by jury. With their general verdict the jury returned answers to interrogatories. Appellant's motions for judgment on such answers and for new trial were overruled.
The errors assigned and relied on for reversal are: (1) Error of the court in sustaining appellee's demurrer to appellant's first paragraph of answer "to appellee's complaint"; (2) error of the court in sustaining appellee's demurrer to appellant's second paragraph of answer "to appellee's complaint"; (4) "the court erred in refusing to allow the appellant to open and close the argument to the jury"; (5) error in overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict.
No question is presented by either the first or second assigned errors because the record does not disclose any ruling to which such assignments are applicable. The first paragraph of answer was addressed to the first paragraph of complaint and the second paragraph of answer was addressed to the second paragraph of complaint, and neither was addressed to "the complaint." However, our examination of the complaint convinces us that each paragraph thereof is based on the check, and this being true, the action is not barred by the six years statute of limitations. § 295, cl. 5, Burns 1914, § 293 R. S. 1881; Culver v. Marks (1890), 122 Ind. 554, 23 N.E. 1086, 7 L. R. A. 489, 17 Am. St. 377; Henshaw v. Root (1877), 60 Ind. 220, 222; Sutton v. Baldwin (1896), 146 Ind. 361, 45 N.E. 518; Hoffman v. Hollingsworth (1894), 10 Ind.App. 353, 356, 37 N.E. 960.
A check is a written contract for the payment of money and the drawer or signer of the bill, by the act of drawing and delivery, becomes bound to pay if the acceptor does not. 1 Parsons, Notes and Bills 54. Offutt v. Rucker (1891), 2 Ind.App. 350, 354, 27 N.E. 589. See also, cases cited, supra.
Appellant's fourth assigned error presents no question. The refusal to allow appellant to open and close the argument was an error occurring during the trial and should have been made the ground of a motion for new trial in order to present any question for review here. § 585, cl. 8, Burns 1914, § 559 R. S. 1881; Tilden v. Whitely, etc., Co. (1901), 27 Ind.App. 53, 60 N.E. 963; Siberry v. State (1897), 149 Ind. 684, 39 N.E. 936, 47 N.E. 458.
It is questionable whether appellant has by his brief presented the fifth assigned error. In any event the ruling complained of was not, in our judgment, erroneous. In determining the correctness of the ruling on a motion for judgment on the answers to interrogatories the court looks alone to such answers, the pleadings and the general verdict. Beard v. Goulding (1913), 55 Ind.App. 398, 103 N.E. 875; Myers v. Winona, etc., R. Co. (1914), 58 Ind.App. 516, 106 N.E. 377. Every presumption is indulged in favor of the general verdict, and the answers to interrogatories will be permitted to prevail over it only in cases where the conflict between the two is such that no evidence possible under the issues could reconcile them. Chicago, etc., R. Co. v. Schenkel (1914), 57 Ind.App. 175, 104 N.E. 50; Meyers v. Winona, etc., R. Co., supra. Where the answers relied on to overturn the verdict are themselves contradictory and inconsistent they will not control the verdict. Chicago, etc., R. Co. v. Schenkel, supra; Meyers v. Winona, etc., R. Co., supra; Wise v. Cleveland, etc., R. Co. (1915), 183 Ind. 484, 108 N.E. 369.
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