22 Ind. App. 252 | Ind. Ct. App. | 1899
— Appellee commenced this action by filing with the clerk of the Jackson Circuit Court a verified statement of account, based upon a note and mortgage filed as exhibits, demanding $’536.45 as principal and interest, and $39.50 attorney’s fee. Afterwards, by leave of court, appellee filed a second paragraph, setting out the facts relating to the contracting of the debt for which the note and mortgage were given, - making' them exhibits. Appellant demurred'to each paragraph, (1) for want of facts; (2) for defect of parties defendant, in that Barbara A. Euddick was a necessary party defendant. The cause was tried by the court upon the issues joined by the statute. A general finding was made, and judgment rendered in favor of appellee for $555, principal and interest, and $45, attorney’s fee. The first, second, and third specifications of errors challenge the sufficiency of the complaint, and its several paragraphs. The fourth, the action of the court in overruling the motion for a new trial. Appellant discusses the sufficiency of the complaint (1) for want of facts; (2) for defect of parties defendant; and we will consider the questions raised in the same order with reference to both paragraphs.
The second paragraph alleges, in substance, that on the 28th day of August,, 1891, Jacob M. Ruddick, then in life, borrowed $500 for five years of plaintiff, and procured his wife, Barbara A., to execute the note in suit for said debt in said sum; that said debt is due plaintiff from said estate; that on said date the deceased caused his wife to join with him,
Was there a defect of parties defendant? Section 2466 Burns 1894, section 2311 Horner 1897, provides that “no action shall be brought by complaint and summons against any executor or administrator and any other person or persons, or his or their legal representatives, upon any contract executed jointly, or jointly and severally, by the deceased and such other person or persons, or upon any joint judgment founded thereon; but the holder of said contract or judgment shall enforce the collection thereof against the estate of the decedent only, by filing his claim as provided iu the preceding section.” The preceding .section (2465 Burns 1894, section 2310 Horner 1897) referred to provides that the holder-of a claim against an estate shall not bring an action by complaint and summons, but shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending, duly verified as therein required. Section 2467 Burns 1894, section 2312 Horner 1897, reads: “Every contract executed jointly by the decedent with any other person or persons, and every joint judgment founded on such contract, shall be deemed to be joint and several for the purpose contemplated in the last
In appellant’s brief it is stated: “This note and mortgage are still outstanding against Barbara A. Ruddick — in full force as to her. Suppose she elects to stand by their validity, and brings an action against this estate for $500 for money loaned, or money had and received of her by Jacob A. Ruddick, deceased, and offers the same evidence given in this case, — that, as soon as received, this money was taken charge of by her husband; that res adjudicate/, could not be pleaded, because she was not a party to this action; that she might recover another judgment on the evidence for the same transaction.” This fear we deem an idle one. If the estate pays this debt upon the theory that the husband was the principal, or that, as between himself and wife, he was her surety, she could not recover.
Appellant next discusses the action of the court in overruling the motion for a new trial. This motion states five reasons, viz: (1) The decision of the court is not sustained by sufficient evidence; (2) is contrary to law; (3) and (4) the damages assessed are excessive; (5) errors of law in the admission and rejection of evidence specified in the motion, and
Charles Leininger, a witness introduced by appellee, was. ashed the following question: “You may state who wrote that name.” The record is not clear as to what name is; meant. Appellant’s counsel says the question was ashed for the purpose of showing who executed the note. Appellee’s counsel claims that, when the question was put, the note described in the complaint was shown to the witness (which does not appear from the record), and that the question was asked with a view of showing who executed the note. We consider, therefore, that the question referred to the signature to the note in suit. Appellant objected to the question upon the ground that the witness had shown himself to have-been the agent of the decedent, and was therefore incompetent. Counsel bases this objection upon section 508 Burns 1894. The part of said section relevant to the question is as follows: “No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness, in any suit upon or involving such contract, as to matters occurring prior to-the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of' the decedent, unless he shall be called by such heirs or legal representatives.” The evidence clearly shows that this witness acted as the agent of the deceased. He procured the-loan at his instruction, and was paid for such service by him. The statute means, as we interpret it, to prevent an agent of' a person still living from testifying in behalf of his principal against the estate of the other party to the contract, except: at the instance of the legal representative op heirs of the deceased. This view is supported by the apparent reason for-the statute. The claimant is not a competent witness. In many instances to permit the agent of the claimant to testify would defeat the object of the statute, which is to place the.
Another reason assigned for a new trial is that the court permitted Katie Honan, a witness for appellee, to answer the following question: “You may state who paid the interest on the note?” Appellant objected to the question upon the ground that it was immaterial; was no part of the contract. The witness answéred that Hr. Ruddick paid the interest. It was the theory of appellee that the note was given at the solicitation of the deceased, for money borrowed for him, an,d which he received. In support of this theory the evidence was not immaterial. The note was signed by a married woman. In cases in which the question of the capacity in which a married woman signing a contract arises, the courts will look at the facts under which the contract is entered into, as well as its form. Bowles v. Trapp, 139 Ind. 55.
The next alleged error specified in the motion for a new trial was the permitting of Cora Honan to testify as a witness, over the objection of appellant, upon the ground that,
The next reason for a new trial is the permitting of an attorney to testify to the value of the attorney’s fee, for the collection of the claim in suit. The objection to the question was that “the defendant did not promise to pay any attorney’s fees, and that there are no attorney’s fees collectible on the face of the mortgage.” This objection is not well taken for the mortgage is given, as heretofore set out, to secure the payment of the note for “$500, with eight per cent, interest and attorney’s fees.”
The next reason urged for a new trial was the exclusion of certain evidence. Appellee introduced evidence to show that the deceased had made statements during his life tending to show that he acknowledged the debt in suit as his own. Appellant offered to show by the evidence offered, that at about the same time the decedent made other statements, directly to the contrary. Such declarations would have been self-serving. They were properly excluded.
The appellant further offered to prove, by questions propounded at the proper time, the value of the mortgaged property, and the value of other property owned by Barbara A. Euddick,. which evidence the court excluded. This action is given as reason for a new trial. This evidence was offered in support of appellant’s theory that the decedent was liable, if at all, as surety for his wife, and that he had a right to show that the mortgaged premises were sufficient to pay the,
The third ground for which a new trial was asked was that the amount of recovery was too large. The only excess claimed is the allowance of any attorney’s fee, not the amount of the fee. This reason is urged upon the ground that deceased did not promise to pay any attorney’s fee. We have passed upon this provision of the mortgage. Appellant, upon this reason, further insists that an attorney fee should not be allowed, because “a defense of the note was made necessary through her own fault in accepting paper in such shape. If she had taken the note of Jacob M. Ruddick for a loan of money made to him, it would not have been necessary to employ an attorney, but the claim would have been allowed without expense.” This argument does not impress, us seriously, and, in view of the facts presented by the evidence, can not be accepted as convincing.
What we have said upon the liability of appellant under the mortgage, in passing upon the sufficiency of the complaint, disposes of the reason for a new trial next presented by appellant, viz.: “That the decision of the court is contrary to law.” The statement in the note, “The above loan is for my own use and benefit, and for the use and benefit of my own estate,” while calculated to arouse mistrust as an unusual and unnecessary provision, cannot affect the contract of the husband contained in the mortgage. Either paragraph, by virtue of the mortgage alone, states a prima facie liability against appellant.