Wynn v. Troy

• Decision Date: 29 October 1886
• Docket Number: 12,666
• Citation: Wynn v. Troy, 109 Ind. 250, 9 N. E. 73 (Ind. 1886)
• Parties: Wynn v. Troy et al
• Court: Indiana Supreme Court

9 N.E. 73

109 Ind. 250

Wynn v. Troy et al

No. 12,666

Supreme Court of Indiana

October 29, 1886

Petition for a Rehearing Overruled Jan. 14, 1887.

From the Hancock Circuit Court.

The judgment is affirmed, with costs.

J. W Hardman, E. Marsh and W. W. Cook, for appellant.

C. G Offutt and R. A. Black, for appellees.

OPINION

Howk C. J.

After this cause was put at issue, it was tried by the court; and at the request of appellant, the plaintiff below, the court made a special finding of the facts, and thereon stated its conclusions of law. Over appellant's exceptions to the court's conclusions of law, judgment was rendered thereon and in accordance therewith. From this judgment, appellant prosecutes this appeal; and the only error of which she here complains, is the alleged error of the trial court in its conclusions of law.

The facts found by the court were substantially as follows: On the 4th day of January, 1883, Harriet Piper purchased of the defendant, Christopher C. Troy, lots numbered 2 and 3, in block "I," in Records and Vorhes' addition to the town of Fortville, in Hancock county, and she sold, assigned and transferred to said Troy a note, calling for the sum of -- dollars, purporting to have been executed to her by Gray & Walker. Afterwards, defendant Troy represented to the defendant Harriet Piper, that there was a mistake in said note in the interest clause thereof, and that it did not draw interest as was intended by the parties; and thereupon the said Troy caused to be drawn up a note, of which the following is a copy:

"$ 483.33. March 31st, 1883.

"One hundred and fifty days after date, we promise to pay to the order of Harriet Piper, at Fortville, four hundred and eighty-three 33/100 dollars, value received, without any relief from valuation or appraisement laws, with eight per cent. per annum from date until paid and attorney's fees. The drawers and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note.

(Signed) Gray & Walker."

And the same was thereupon executed by Joseph B. Gray in the name of Gray & Walker, and was by said Troy presented to the defendant, Harriet Piper, for her endorsement, in lieu of the original note. Said note was made by the parties for the purpose of correcting a mistake which was made in the original note, as to the interest that the note should draw and was accepted by said Troy in payment for the real estate above described. Afterwards, said Troy purchased of the plaintiff, Wynn, certain real estate in Hancock county, and, in payment therefor, transferred and endorsed said note to her. All the parties up to that time believed the note to be a valid and binding promissory note of the firm of Gray & Walker. Prior to the giving of the note first above mentioned, and at the time of its execution, Gray & Walker were partners in a firm composed of Joseph B. Gray and Marcellus B. Walker, who were engaged in the mercantile business in said town of Fortville. Prior to the execution of said first note, Gray had borrowed of the defendant Harriet Piper, the sum of $ 300 upon his own credit and for his own purposes, and had executed to her his note therefor. During the existence of such firm, Gray also borrowed of the defendant Piper, an amount equal to the residue of such note, upon the credit and, ostensibly, for the purposes of said firm in its business, and thereupon executed to her a note in said firm name for his individual debt aforesaid and said partnership debt. Said note was so executed without the knowledge or consent of Marcellus B. Walker. Prior to the time of the execution of the note in suit in this action, the firm of Gray & Walker was dissolved, and the note in suit was executed by Joseph B. Gray, in the name of Gray & Walker, without the knowledge or consent of said Walker. After the maturity of said note, on the 18th day of December, 1882, plaintiff Wynn brought suit against said Gray & Walker as defendants, in the Hancock Circuit Court, to recover upon such note. Gray made default, and judgment was rendered against him for the amount due on...