74 Ind. App. 382 | Ind. Ct. App. | 1918
Since the submission of this cause, the original appellant, Harry B. Gates, died, and on petition and notice Alfred Bennett Gates, administrator of the estate of Harry B. Gates, deceased, has been duly ordered substituted as appellant herein.
The suit was brought by appellee, Frank M. Fauvre, against Harry B. Gates in his lifetime, for contribution on account of the payment by appellee of a certain sum of money for the payment of which appellee alleges he and said Gates were jointly liable. From a judgment
In substance the material averments^of the complaint are as follows: Prior to March 13, 1906, appellee, Frank M. Fauvre, Harry B. Gates, C. Edgar. Elliott and Percival Moore, engaged in a joint enterprise, to purchase from H. H. Bechtel, August Fabel and\C. A. Gordon, certain securities of the Louisville and Eastern Railroad Company, owned by said Bechtel, Fabel ¿pd. Gordon. By agreement, such purchasers were’ to b equally interested in said securities and equally liable for the purchase price thereof.
On March 13, 1906, said purchasers entered into a written contract with Bechtel, Fabel and Gordon by which they agreed to pay for said securities the sum of $60,000, of which amount $20,000 was to be paid in cash and $40,000 by notes of said purchasers. Thereafter said purchasers sold to the Marion Contract and Construction Company, a Kentucky corporation, certain of said securities so purchased as aforesaid, and in consideration thereof said corporation assumed the payment of said indebtedness of $40,000 evidenced by the notes of said purchasers. That said notes were renewed from time to time and said corporation paid said indebtedness, except $13,000 of the principal and $266.41 accumulated interest, for which amount said corporation gave its notes to said Bechtel, Fabel and Gordon, which notes were also signed by said Moore, Elliott and Fauvre. All prior notes had also been signed by said Harry B. Gates. The arrangements for the last renewal were made by said Moore, and Fauvre signed the notes and delivered them to Moore with the distinct understanding and agreement that the said Harry B. Gates should also sign them before they were delivered
Prior to the maturity of the notes said corporation was adjudged a bankrupt, and thereupon said Bechtel, Fabel and Gordon brought suit on said notes against said Fauvre and Elliott. Thereafter, on June 6, 1910, Fauvre paid the full amount due on said notes in the sum of $13,266.41 and costs of suit in the sum of $18.60.
The indebtedness so paid was the residue of the obligation created on behalf of said original purchasers of said securities, and represented in equal parts the obligation of said parties on account of benefits shared equally by them.
The demurrer to the complaint was for insufficiency of the facts alleged to state a cause of action.
The memorandum of objections to the complaint in substance states: (1) That the contract which created the liability against the defendant was in writing and should be made a part of the complaint ; (2) the promise declared upon is within the statute of frauds; (3) when defendant refused longer to become liable on the notes, plaintiff should have refused to renew them. If any liability exists in plaintiff’s favor it is against Moore.
The complaint does not show that Gates refused to renew the notes, but proceeds upon the theory that Moore violated his instructions in delivering the notes without the signature of Gates, and that when Fauvre paid the debt evidenced by such notes he thereby paid the balance of the original debt incurred in the joint enterprise shown by the averments of the complaint for which Gates was jointly liable with him. The averments show that four persons entered into the original joint enterprise, and appellee seeks only to recover from defendant the one-fourth part of the amount paid by Fauvre on account of the balance due on the original joint obligation. The complaint is clearly good as against the points suggested by the' memoranda, and it therefore follows that the court did not err in overruling the demurrer thereto.
A proper understanding of the questions presented under the motion for a new trial requires us to notice the answers to the complaint. The first paragraph is a general denial. The second sets up the details of the transactions and shows that the debt of $40,000 mentioned in the complaint was assumed by the Marion Contract and Construction Company; that on August 13, 1907, Gates sold all his stock in said corporation to Moore and, by a written contract with Gates, Moore agreed that he would take up and pay all the obligations of said company on which Gates was liable as indorser, and that in case any of such obligations were renewed Gates was “to be released from any and all liability on said obligation or obligations”; that Fauvre knew of the sale of stock by defendant to Moore as aforesaid when
The fourth paragraph avers the details of all the transactions and is drawn on the theory that payment by Fauvre was voluntary and therefore that no right of contribution exists in his favor. In addition to the facts already indicated in this opinion, it is charged in the fourth paragraph that after Gates sold his stock to Moore, and after the maturity of. the outstanding notes on which Gates was liable, Moore secured from the payees an extension of the time of payment of the debt and also secured from Bechtel, Fabel and Gordon, a release of Gates from all liability on such obligations; that thereafter renewal notes were given to said payees, executed by said Marion Construction Company as principal in the place of Moore, and with Moore as an indorser in the place of Gates, and with the signatures of both Fauvre and Elliott thereon; that neither Fauvre nor Elliott knew that Gates was to be so released and did not consent thereto, but executed said renewal notes as indorsers or sureties with the understanding that Gates was in like manner to join in the execution of the notes with them; that said notes were delivered and accepted by said payees without the signature of Gates thereon, in full acquittance and satisfaction of the amount due upon the former notes for which the notes so executed without the signature of Gates were given
Two main propositions remain for our consideration, viz.: (1) Did the assumption of the debt by the construction company and the subsequent acceptance of renewal notes, without the signature of Gates, executed as alleged in the second paragraph of answer, in- law, operate as a release of Gates from all liability? (2) Was Fauvre legally bound for the debt paid by him, or was such payment purely voluntary on his part? Appellant makes affirmative answer to each of such questions, and appellee contends that the undisputed facts of the case, under the law, compel a negative answer to each question.
The material facts averred in the second paragraph of answer are not seriously controverted, but appellant and appellee differ widely as to their legal effect. The undisputed evidence also shows that the Marion Contract and Construction Company was a corporation duly organized under the laws of Kentucky; that prior to the sale of stock by Gates to Moore all the stock of said
The name of the construction company was not on any of such renewal notes except the last, and was not on these notes when the same were signed by Fauvre and Elliott. Fauvre did not know that the notes signed by the construction company as principal and by Moore, Elliott and himself as indorsers, had been so executed when the same were delivered to Bechtel, Fabel and Gordon by Moore, nor did he ascertain such to be the fact until suit was brought on the notes in the circuit court of the United States. When Fauvre and Elliott signed the last .renewal notes in -November, 1907, no other names than theirs and Moore’s were on such notes, and the same were given to Moore with instructions by
The defense set up under the second paragraph of answer fails because it is devoid of a valid consideration for the alleged release of Gates. Were the sufficiency of the answer before us, we should be compelled to hold it insufficient in law for want of a consideration for the alleged release of Gates. The finding of the court as to the second paragraph of answer is sustained by sufficient evidence and is in effect a finding that the defense set up in that paragraph of answer fails because the evidence does not prove a consideration for the release of-Gates, and likewise fails to show the consent of Fauvre to such release, both of which are ultimate, material facts, essential to the maintenance of such alleged defense of release. Neither the facts pleaded nor the evidence show a novation. Davis v. Hardy (1881), 76 Ind. 272, 274; Pope v. Vajen (1889), 121 Ind. 317, 320, 22 N. E. 308, 6 L. R. A. 688; Jeffries v. Lamb (1880), 73 Ind. 202, 207; Kelso v. Fleming (1885), 104 Ind. 180, 182, 3 N. E. 830; McClellan v. Robe (1884), 93 Ind. 298, 301; Ditmar v. West (1893), 7 Ind. App. 637, 639, 35 N. E. 47; Cates v. Seagraves (1914), 56 Ind. App. 486, 488, 105 N. E. 594; Walls v. Baird (1883), 91 Ind. 429, 433; 34 Cyc 1045-1050.
The averments of the fourth paragraph of answer as
“Dear Sir:
Returning from an absence, I find your favor of the 15th inst. enclosing notes as stated. I see you have substituted another name for Mr. Gates, left off. I enclose herewith order for Third National Bank your city to deliver to you the. notes held by them for collection.
“Yours Truly,
“H. H. Bechtel.”
The original debt of $40,000 to Bechtel, Fabel and Gordon was paid by the construction company except the amount evidenced by the last renewal notes, which were paid by Fauvre under the circumstances shown above.
Appellee contends that the facts in this case show that Fauvre was still liable on the renewal notes, notwithstanding the payees accepted them knowing Gates’ name had been left off, and that, notwithstanding the ruling of the United States Circuit Court on such answers, a trial would have developed in that court substantially the same facts as those found sufficient in the trial of the case at bar.
But the undisputed evidence shows that the payees accepted the renewal notes executed in November, 1907, long after the maturity of the notes for which they were given as renewals, with knowledge of the facts that the construction company was the principal on such notes and that Gates, one of the indorsers of the former notes and all previous notes executed to them, had not joined in the execution of such renewal notes. The evidence also shows without controversy that notwithstanding such information the payees voluntarily surrendered to Moore the notes on which Gates was liable, and that, upon-failure of the principal to pay the notes at maturity, the payees instituted suit thereon in the circuit court of the United States against Fauvre and Elliott, and that thereafter the amount due on such notes was paid by appellee, without a judgment having been rendered against him.
Appellant contends that these facts authorize no other inferences or conclusions other than the ultimate facts that the payees of said notes accepted the last renewal notes in full payment and satisfaction of the debt evidenced by the notes surrendered as aforesaid; that they thereby released Gates from liability upon the joint obligation into which he had entered, and that such release, in law, operated likewise as an absolute release of Fa.uvre and Elliott from all liability to such payees.
Appellee contends that the facts above set out do not evidence a release of Gates from the original joint obligation to which he was a party; that notwithstanding
To avoid hardships and inequitable results not intended by the parties, courts in some instances have construed ambiguous releases as agreements not to sue the party released, and refused to give to such instruments or arrangements the effect of releasing other joint obligors. In some instances agreements not to sue one of several joint obligors at any time have been given the effect of an absolute release of such obligor, with the results attendant upon such release. Such phases of the doctrine of release or agreements not to sue have not been passed upon by the courts of Indiana, but the decisions of this state are in accord with the generally prevailing doctrine which emphasizes the importance of ascertaining and following the intention of the parties when it can be done without violence to the language employed where the alleged agreement is in writing, or without disregarding the plain intention of the parties, at the time of the transactions involved, as evidenced by their conduct in relation thereto. Aylesworth v. Brown, supra; Walls v. Baird, supra; 34 Cyc 1084; 24 Am. and
But Moore had no authority from Fauvre and Elliott, either express or implied, to release Gates, or to change the existing relations- between them. Their relations and liabilities were fixed by what had previously transpired, and could not be changed without the consent of all the parties either expressed or implied. They were j ointly liable for the debt evidenced by the several notes executed to Bechtel, Fabel and Gordon, and the acceptance of the last renewal notes by the payees, under the circumstances shown, did not change the relation or liability of Fauvre, Elliott and Gates as between themselves. Davis v. Hardy, supra; Bristol Milling, etc., Co. v. Probasco (1878), 64 Ind. 406, 413; Clark v. Billings (1877), 59 Ind. 508, 509; Todd v. Oglebay (1902), 158 Ind. 595, 599, 64 N. E. 32.
The renewal notes in controversy were executed in November, 1907, and were payable at the Third National Bank of Louisville, Kentucky. Not being payable at a bank in the State of Indiana, they are not negotiable under the statutes of this state, then in force.-§9076 Burns 1914, §5506 R. S. 1881; §9089b7 Burns 1914, Acts 1913 p. 120 et seq.
Whether such notes are negotiable under the law merchant of the State of Kentucky does not appear.
Contribution originated in equity and is based on natural justice. It is generally held not to rest upon contract expressed or implied. It applies where equity between the parties requires equality of burden. It. is the mode by which equity compels the, ultimate discharge of a debt by the one who as a matter of right should pay it. Sheldon, Subrogation (2d ed.) §§1, 11; 1 Pomeroy, Equity Juris. (3d ed.) §§405, 409.
Text-writers and many decisions of this court and of our supreme court have declared '’the principle broad enough to include every instance in which one party, not a mere volunteer, pays a debt for another, who was primarily liable therefor, and which in. equity and good conscience the latter should have paid. When equity is invoked it brushes aside mere forms and technicalities and pursues, the actual relations of the parties to the final culmination thereof, and determines liability, or freedom therefrom, according to the principles of right and justice between the parties. He who seeks the aid of equity must do equity and come into court with clean hands. The undisputed fact is that Fauvre paid the whole debt for which the four joint adventurers were liable. Had the debt been paid by them at the time of the last renewal as between the original obligors, each should have paid the one-fourth thereof. Gates has only been held liable for one-fourth part of the amount of that debt, and he therefore cannot complain of the amount if liable at all. As above shown, Fauvre was legally liable to the payees of the last renewal notes.
Gates was not misled or deceived by what was done. Fauvre’s mere knowledge of Moore’s contract with Gates to save him harmless by reason of his indorsement of outstanding notes could not bind him. Gates is not in a position to base any claim of hardship on the extension of time secured after he sold his stock and made his contract with Moore, for in that contract he contemplated extensions of time on the notes on which he was indorser, and also sought to further protect himself by the guaranty contract of Mr. Netherland. <
The contract provides:
“That all obligations of the Marion Contract and Construction Company on which the said party of the first part is liable as endorser are to be taken up and paid by the party of the second part, and if any of said obligations at any maturity thereof shall be renewed by the party of the second part, then in that event the name of the party of the first part is to be released from any and all liability on said obligation or obligations.”
Gates did not by such contract with Moore and Netherland take himself out of the realm of possible liability, for in the event the construction company failed to pay, and both Moore and Netherland failed to make good their obligations to him, his situation and relation remained unchanged, except as to the right of action against Moore and Netherland accruing to him by reason of the aforesaid contract.
To release Gates from all liability under such circum
In view of the facts, of this case and the finding of the court, we cannot hold as a matter of law that the payment made by Fauvre was voluntary, or that Gates was discharged from all liability by the acceptance of the renewal notes under the circumstances above shown. Thompson v. Connecticut, etc., Ins. Co. (1894), 139 Ind. 325, 344, 346, 38 N. E. 796; Norris v. Churchill, supra; Nelson v. McKee (1913), 53 Ind. App. 344, 348, 99 N. E. 447, 101 N. E. 651, and cases cited; American Fidelity Co. v. East Ohio, etc., Co. (1913), 53 Ind. App. 335, 340, 101 N. E. 671; Mortgage Trust Co. v. Moore (1898), 150 Ind. 465, 478, 50 N. E. 72; Warford v. Hankins (1898), 150 Ind. 489, 493, 50 N. E. 468; Dessar v. King (1887), 110 Ind. 69, 72, 10 N. E. 621; Cook v. Cook (1884), 92 Ind. 398, 401; Binford v. Adams (1885), 104 Ind. 41, 42, 3 N. E. 753; III Pomeroy, Equity Juris. §§1418-1419; 37 Cyc 363 et seq.; 27 Am. and Eng. Enc. Law p. 202 et seq.
Other questions suggested are not of controlling importance.
. The decision of the court is sustained by sufficient evidence. The case seems to have been fairly tried on its merits and a correct result reached.
No intervening error affecting any substantial right of appellant has been shown.
Judgment affirmed.