149 Ind. 375 | Ind. | 1898
The appellee, Baker, sued the appellant, Durfiinger, to recover upon a promissory note for $600.00, with interest and attorney’s fees, and for the enforcement of a vendor’s lien against certain real estate sold by Baker to Durfiinger, and for which, it was alleged, said note was executed. The appellant answered, first, that the note was executed for the purchase money for the appellee’s interest in the property and business of a partnership composed of the appellant and appellee, and that the consideration for said note had failed in part, owing to the fact that the appellant had agreed to assume all the indebtedness of the partnership, and was to receive all of its assets; the assets and liabilities having been determined from a general statement made by the appellee, who kept the books of the business, to the effect that the assets were $6,811.15 and the liabilities $5,448.62, as shown by such books, whereas the assets, in the materials on hand, were short of the stated amount, and the liabil
The reply, in addition to a paragraph in general deniál, alleged that in the dissolution of the partnership, and sale to Durflinger, every matter connected with the business was settled; that appellant assumed all liabilities of the business; and that, in accepting $600.00, he received less than the value of his interest. The trial resulted in a special finding, conclusions of law, and a judgment against the appellant. The assignment of error is that the court erred — First, in its conclusions of law; second, in overruling the motion for a new trial; and, third, in overruling the motion for a venire de novo.
The special findings were that on the 20th day of June, 1895, Durflinger purchased Baker’s interest in the partnership business, accounts, and property, and executed to Baker the note in suit; “that at the time of said sale a memorandum of the partnership property, assets, and liabilities was prepared by Baker, as a basis to approximate the value of the same; that both plaintiff and defendant had access to the accounts, books, and property of the partnership at all times; that the negotiation of said sale was on hand for several days, and the price finally agreed upon was a
The finding above, in quotations, i-t is earnestly contended, is not supported by, and is contrary to the evidence. This contention rests, in most partj upon a writing introduced in evidence, and bearing the signatures of both parties, and reading as follows:
“June 20, 1895. John W. Durflinger having purchased A. M. Baker’s undivided half interest hoop, mill property, stock, book accounts, etc., on following basis:
Stock on hands...............$3,390.40
Riant....................... 3,180.00
Book acct. as per ledger....... 240.75
$6,811.15
*380 “Assuming all unsettled accounts as follows:
Bills pay.....................$5,080.00
Book acct., etc................
Overdraft 1st Natl. Bank...... 40.00
Kave and K. called........... 40.00
Longby & Hare acct. and others 25.62
Freights called....... 25.00
Patterson ................... 23.00
Jenkins ..................... 75.00
Hare & Sons................. 100.00
Craig interest................ 40.00
5,448.62
Net surplus. L,362.53
3,811.15
“And in full settlement of Baker’s half interest, as shown by surplus, Durflinger executes his note of hand for $600.00 and agrees to protect Baker from all harm. Mutually agreed to be correct. John W. Durflinger, A. M. Baker.”
Baker testified: That negotiations had been pending between the parties, when he offered to sell upon an invoice, or at a “lump sale,” for $700.00. To the latter proposition, Durflinger made a counter proposition of $500.00; and thereupon they agreed upon $600.00, the note in suit was executed, a deed was made, and the tradewas closed up. Then they agreed to put the above statement upon the book asa final settlement of all differences between them, and after the agreement and sale the statement was written in the book. He testified, also, that the statement was an exhibit of the condition of the firm’s business, as appeared from the books of account, and as both parties believed to be true; that an invoice had been made on the first day of May, before; and that a statement from
Durflinger’s theory was that the written statement 'was the original and only agreement of sale, and that the note and conveyance were executed pursuant thereto. His evidence tended to support this theory. It will thus be seen that the evidence was in conflict as to the basis of the agreement of the parties; and, unless the contention of appellant’s learned counsel shall prevail, that the writing is absolute, and not subject to contradiction by parol evidence, this conflict must be left by us as settled by the trial court.
As we have seen, the writing was not pleaded by either party as directly or collaterally connected with the action or defense; and the agreement pleaded in the first answer would properly be held an oral Agreement, with a provision that Durflinger should pay all of the firm debts, and not certain specified debts. So far it would agree with the appellee’s theory. But if the written statement was the basis of the appellant’s rights, as contended in his behalf, we know of no reason for admitting it without pleading it, either in the form in which it was written, or for enforcement in a reformed condition.
The defense is that he received less than he bargained for, and paid more than he contracted to pay. Either element of this defense sounds in contract, and whether the contract has that effect is a question of law, which should have been presented by the pleadings. The contract, having been in writing, and not pleaded was not in issue. Church v. Fisher, 40 Ind. 145; Galbreath v. McNeily, 40 Ind. 231; Ashley v. Foreman, 85 Ind. 55; Potts v. Hartman, 101 Ind. 359; Mahoney v. Robbins, 49 Ind. 146. The parties, from their pleadings, both treated the contract, concerning those things entering into the consideration, as in parol.
Much is said as to the fact that Baker, a partner, having charge of the books, made the statement or memorandum as to the condition of the business, and upon which the negotiations were made. It is assumed that this fact placed him in such confidential or fiduciary relation to Durflinger as to require exactness of statement, and to hold him responsible for any deviation in amount as to assets or liabilities. The rule sought to be enforced is that which, from the relationship of parties, an unexplained advantage gained by one of the parties is deemed fraudulent.,
Aside from the question as to whether constructive fraud is the basis of a remedy in this State, the appellant’s allegation is not of fraud, positive or constructive, but is of mutual mistake, and does not come within the rule suggested. The judgment is affirmed.