17 Ind. App. 228 | Ind. Ct. App. | 1897
Trial by the court and judgment below in favor of appellee. The errors assigned are that the conrt erred in overruling appellant’s demurr rer to the complaint, in overruling motion for a continuance, and overruling motion for a new trial.
The complaint avers, in substance, that in the year 1888, Thomas G. Day and William 0. Griffith were, under the firm name of Thomas 0. Day & Company, engaged in the business of loaning money; having their principal place of business at Indianapolis, Indiana; that they were general agents in the State of Indiana for loaning money of the Aetna Life Insurance Company; that Lavelle & Clark were also engaged in the business of loaning money, and their place of business was Washington, Indiana; that Day & Company and Lavelle & Clark had an agreement with each other by which Lavelle & Clark were to procure customers and contracts for Day & Company as agents, to obtain loans for such customers, and divide with each other the commissions obtained therefrom ; that appellee, Dages, applied tq Lavelle & Clark for a loan; that Lavelle & Clark, in pursuance of the agreement made with Day & Company, procured him to sign a contract, employing Day & Company as his agents to procure for him a loan, agreeing to pay them a certain commission for their services, which agreement was, by Lavelle & Clark, forwarded to Day & Company, who accepted the same and thereupon, as the agents of appellee, Day & Company procured for him a loan of $750.00; that by the terms of the agreement between Day & Company and Lavelle & Clark, Day & Company were to procure the loan, forward the same to Lavelle & Clark, who would then attend to the closing of the loan; that Day & Company procured the loan, for appellee, sent the money by draft to Lavelle & Clark, payable to appellee, together with the
These averments are to-the effect that at the instance of Lavelle & Clark, appellee applied to Day & Company to procure for him a loan. They procured the money, sent it by draft in his name to Lavelle & Clark, and directed them-to see that it was applied to the payment of all liens and incumbrances then on the real estate of the appellee, so that the mortgage to be given to the Aetna Life Insurance Company should be the first lien; they, Lavelle & Clark, procured the draft to be endorsed to them for this purpose; they received the money thereon and engaged to do what Day & Company had instructed them to do, and for which services, in connection with other services to be rendered in and about the making of said loan, they were to receive from Day & Company 2 per cent, of the 5 per cent, commission agreed to and actually paid by appellee to Day & Company.
It is clear that in this transaction they were acting as the representatives of Day &Company; instructions were given them by Day & Company to do certain things in the interest of their principal, the Aetna, Life Insurance Company; at their instance they procured the money from appellee, agreeing to apply it in the discharge of liens that the Aetna Life Insurance Company might be secure in its investment. We think appellant should not be heard to say that Lavelle & Clark were not acting for them and thus escape responsibility for the bad faith of one whom they had intrusted with their business. Dodds v. Vannoy, Admr., 61 Ind. 89.
The mortgage and notes given by appellee to secure the school fund, having been surrendered to him, marked “satisfied,” by the representative of the ap
It was not negligence upon his part to rely upon the truth of the endorsement of the proper officer to whom he had actually paid the money. The demurrer to the complaint was properly overruled. Its allegations are amply sustained by the evidence.
Appellant insists that the court erred in overruling his motion for a continuance of the cause when appellee had rested his case. Appellant moved for a continuance of the cause because of surprise at the testimony of appellee and one August Farrel, as to the presence and participation of the appellant and one John E. Springer in the paying out of the money on the liens against appellee’s land; to which ruling proper exception was taken, and which is assigned as error in this appeal.
We think in this ruling of the court there was no error. The presence of the appellant at that time would not change the liability of appellant under the averments of the complaint, or under the evidence adduced at the trial.
Judgment affirmed.