148 Ind. 111 | Ind. | 1897
This was a suit by the appellant. John Mitchell, upon four promissory notes, and to fore
A trial resulted in special findings and conclusions of law in favor of the apellees to which appellant excepted. These several rulings are here urged for the reversal of the judgment of the lower court. Every phase of the questions arising upon the rulings upon demurrers to the answers and to the replies is presented upon the special finding and conclusions of law, and said rulings may, therefore, be properly disregarded. Smith, Trustee, v. Wells Mfg. Co., post, 333, and cases there cited.
That the notes in suit were negotiable under section 7515, Burns’ R. S. 1894, so as to vest title therein, is not questionable, but that they were commercial paper, “as inland bills of exchange,” under section 7520, Burns’ R. S. 1894, is not only doubtful, but the reverse has been decided, owing to the stipulation permitting an extension of the time of payment. Glidden v. Henry, 104 Ind. 278; Brown v. First Nat'l Bank, 115 Ind. 572; Oyler v. McMurray, 7 Ind. App. 645; Merchants', etc., Bank v. Fraze, 9 Ind. App. 161.
The complaint, as to Gain, not having alleged the use of due diligence as required by section 7518 Burns’ R. S. 1894, was not, in view of the cháracter of the paper, sufficient. Smythe v. Scott, 106 Ind. 245; Somerby v. Brown, 73 Ind. 353; Hayne v. Fisher, 68 Ind. 158; Couch v. First Nat'l Bank, 64 Ind. 92.
The facts specially found were, that Lake Yiew Cemetery Association was, at the time of the transactions under investigation, a corporation of which appellant was treasurer and had custody of its moneys with the
The conclusion of law was that Mitchell had no right to maintain the suit. It is apparent that the court went fully into the question of the right or authority of the appellant to prosecute the suit in his own name, and that there was a finding -upon every fact pleaded in the affirmative replies. Section 251, Burns’ R. S. 1894, provides that “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section.” The exception there said to be applicable is that “a trustee of an express trust, * * * may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, ¿a contract is made for the benefit of another.”
The facts specially found, instead of disclosing that the appellant was the trustee of an express trust, discloses that he was a mere agent for the custody of the paper, not named in the paper as trustee, and acting in the suit with neither authority nor consent of the association, and that his own name was connected with the transaction without an intention to make him a trustee. Cases in point are Swift v. Ellsworth, supra; Rawlings v. Fuller, 31 Ind. 255.
The cases of Heavenridge v. Mondy, 34 Ind. 28; Wolcott v. Standley, 62 Ind. 198; Holmes v. Boyd, 90 Ind. 332; Rinker v. Bissell, 90 Ind. 375; Landwerlen v. Wheeler, 106 Ind. 523, and the class to which they belong have no force in this case since they disclose contracts from which a trust relation affirmatively appears, or where the suit is to enforce the demand as one of a trust character. There must be something in the nature of the contract, appearing upon its face or from allegations in the pleadings, disclosing that a trust relation exists and is sought to be enforced for the benefit of the cestui que trust. It is not enough that an agent who exceeds his authority in suing in his own
There was no error in the action of the trial court, and the judgment is affirmed.