184 Ind. 31 | Ind. | 1915
Suit in equity by appellant against appellees. The complaint is in four paragraphs. The first and second are based on the theory of
Error is assigned on the conclusions of law and overruling the two motions. The finding of facts, and conclusions of law, are as follows: ■ “(1) Off and prior to the 10th day of May, 1907, George Gordon Kerfoot was engaged in the hardware business as a general merchant in the city of Brazil, Indiana. The defendant, Mary G. Kerfoot, is the mother'of said George Gordon Kerfoot and was on said date a widow and every since said date has been unmarried. The plaintiff is and was on said date the father-in-law of said George Gordon Kerfoot. Said George Gordon Kerfoot was on said date and at all times since largely in debt and insolvent. He was at all times since said date and until he was adjudged a bankrupt on the 25th day of February, 1909, the owner of a stock of hardware of the value of from five thousand to ten thousand dollars, but
On May 10, 1907, when appellant joined in the execution of the $5,000 note to the First National Bank, he did not know that George G; Kerfoot was indebted to the bank by notes theretofore ex
Appellant contends that as to the $4,000 debt on which she was bound as sole surety for an insolvent principal, Mary G. Kerfoot occupied the relation of principal to appellant when the debt was paid from the proceeds of the $5,000 note executed by him as surety on May 10, 1907, and that, in a court of equity which disregards the form and looks only to the substance of a transaction, she must be held liable to indemnify appellant for the final payment of the debt. We can not agree with this view of the law. The evidence does not warrant the conclusion that as between Mrs. Kerfoot and appellant she occupied the relation of principal to any portion of the debt. Her liability, if any, under the evidence must be sought in the law relating to contribution between sureties.
John B. Kerfoot, appellee, a son of Mrs. Kerfoot, .testified that, at his mother’s request, in the latter part of July, 1908, he had a conversation with appellant, in which he told him that Mrs. Kerfoot would refuse to execute further renewals of the notes, and insisted that the. store be closed and the stock'sold to pay the debts. Knight replied that the matter was none of Kerfoot’s business, and that he should let it alone. George G. Kerfoot, among other things, testified that about August 10, 1908, he informed appellant that Mrs. Kerfoot refused to execute further renewals of the notes. Appellant asked why she refused. The witness told him “she feels I can’t.make it and they are going to close the .store up and settle it up.” Appellant replied, “Well I suppose that is some of John’s work.” Witness filled out the new notes dated August 10, 1908, and appellant said, “Bring those notes in and I will sign them.” He then told witness to take them to the banks and take up the old notes. Nothing was said at the time about holding Mrs. Kerfoot for contribution. Witness took one of the notes to the Riddell National Bank, but the latter refused to ac-.
The cause was tried on an amended complaint. Appellees introduced in evidence paragraph one of the original complaint, wherein appellant alleged among other things that the notes given August 10, 1908, were executed by G. G. Kerfoot as principal and appellant as sole surety.
Appellant testified that George G. Kerfoot married his daughter in 1894; that Kerfoot was always, since then, insolvent; that appellant had, since the marriage, made various valuable gifts to the daughter and her husband; that in July, 1908, he gave the latter $1,400 to prevent creditors from closing the store, and on January 15, 1909, he signed as his surety a note for $2,000; at that time appellant expected to pay the note, and afterwards did so; that he signed that note, as well as the ones of August 10, 1908, out of sympathy for his daughter and to help them to get along, and because of the son-in-law’s
There is evidence to sustain the finding that George G. Kerfoot paid the notes on which Mrs. Kerfoot and appellant were sureties with notes executed by himself with appellant as sole surety, and the judgment is affirmed.
Note. — Reported in 110 N. E. 206. What is deemed to be invasion by the court of the jury’s province, see 14 Am. St. 36. On correction of special verdict by venire de novo, see 24 L. R. A. (N. S.) 74. See, also, under (1, 3) 38 Cyc 1990; (2) 38 Cyc 1962, 1978; (4) 38 Cyc 1980, 1990; (6) 38 Cyc 1980; (6) 38 Cyc 1982; (8) 32 Cyc 277; (9) 32 Cyc 280, 285; (10) 3 Cyc 360.