69 Ind. App. 363 | Ind. Ct. App. | 1919
The appellant filed suit in the Hamilton Circuit Court against Horace Gr. Brown and Nell Brown to foreclose a certain real estate mortgage in the sum of $3,500, made to the Hamilton Trust Company, and assigned to appellant, and at the same time filed another separate suit against the same defendants, to foreclose another certain mortgage in the sum of $3,600, executed by said defendants to said Hamilton Trust Company, and assigned to appellant. The appellee filed his petition in each of said causes to be admitted as a party defendant, averring that the appellant had forwarded two coupon notes, one for $105 and one for $108, both due January 18, 1915, to the Hamilton Trust Company for collection; that the said Brown, upon demand and presentation of said coupon notes, failed and refused to pay the same, whereupon the Hamilton Trust Company, at his request, and as it was obligated to do by reason of its indorsement of said notes, took up said interest notes and placed the amount thereof to the credit of appellant, issued the appellant its certificate of deposit, and charged the amount thereof to said Brown as a loan to him on the security of said mortgages, whereby, as averred by appellee, said trust company became indebted to appellant for the amount so deposited upon
By request of appellant, tbe court made and filed special findings of facts, together with conclusions of law, wbicb special findings were numbered from 1 to 20 inclusive, and are as follows: (1) That on January 1,1911, Horace G. Brown executed to Hamilton Trust Company a principal note for $3,600, due in five years, with interest coupon attached for $108 each, maturing on tbe 18th day of January and tbe 18th day of July of each year, all of wbicb were secured by mortgage of even date. (2) That on January 18,1912, said Brown executed to Hamilton Trust Company a principal note for $3,500, due in five years, with interest coupons each for $105, maturing on tbe 18th day of January and on the 18th day of July in each of said five years, all of which were secured by
Interest on Loan. Total.
Horace G. Brown ' $108 $108
Horace-G. Brown 105 105
together with items of like character making up said sum of $448.33, which letter and certificate were delivered into the hands of the officer of said insurance company having charge of such loan account at its office in said city of Indianapolis, at 1:30 o’clock p. m. of said day, and were accepted from said messenger by said officer without any objection or inquiry concerning the same, and without making any answer thereto; that before the close of banking hours on the
(9) Said certificate of deposit was in the following form and words:
“The Hamilton Trust Company, No. 4765. $448.33 Noblesville, Ind., Jan. 22, 1915. H. G. Brown et al. have deposited in this bank Four Hundred Forty Eight and 33/100 Dollars, payable to the order of Beserve Loan Life Insuranee Company, Indianapolis, in current funds on return of' this certificate properly endorsed.
Not -subject to check.
Elmer L. Sturdevant, Pres.”
(10) Said certificate was forwarded by said Fletcher American National Bank for collection, and on presentation was dishonored and protested for nonpayment. Whereupon said bank required said insurance company to make its check for the amount
(11) There was no understanding "between said trust company and said insurance company that said certificate should not he accepted as payment, and the court finds as a fact that the same was tendered and received as payment.
(12) That said trust company made no representation to said insurance company as to whether said Brown had or had not made actual payment of said coupons to said trust company, except as the recitals in said certificate and letter accompanying the same might import, and said insurance company made no inquiry concerning the same and did not learn that said Brown had not in fact- paid said coupon until after the filing of said trust company’s cross-complaint in this action. . •,
(13) That said trust company was insolvent on January 22, 1915, and after close of business hours was taken in charge by the auditor of state, and did not reopen for business; the cross-plaintiff was after-wards appointed receiver, and the coupon interest notes due July, 1914, and January, 1915, came into his hands as a part of the general assets of said company.
(14) That causes numbered 17,272 and 17,273 by consent of the parties were consolidated; that Brown thereupon paid all costs then accrued, and paid to said insurance company all interest accruing after January 18, 1915, and paid into court $248.68 on the coupons maturing July, 1914, and $238.13 on those maturing January, 1915, and said Brown was thereupon discharged from further liability.
(15) It is agreed by the parties that further pro
(16) Before filing its second paragraph of complaint, said insurance company demanded of said receiver the redelivery of the interest coupon that matured January 18, 1915, and offered to credit the principal sums due thereon, to wit, $213 on its claim filed with the receiver, which demand and offer the receiver refused, and at the trial said insurance company again offered to allow such credit, which offer was also declined by said receiver.
(17) On April 7, 1915, said insurance company filed with said receiver its claim for $448.33, in which it alleged that in January, 1915, said Brown had deposited with said trust company the said sum of $213, of said amount, for transmission to it; that said trust company thereafter mailed said certificate, which was copied into said claim; that it refused to accept the same as payment; that it immediately placed said instrument in said bank for collection, and that at the time of presentment said trust company had been closed, and that the moneys certified therein to have been deposited for claimant had not been paid; that said insurance company prayed.that said claim be paid as a preferred claim, but it was not alleged that the fund so certified to have been deposited came into the hands of the receiver, nor that the same could be identified, nor was preference claimed out of any particular fund or property; that said claim was duly verified and is now pending for allowance.
(18) That said trust company had previously col
(19) On February 22,1915, said trust company was adjudged insolvent, and John L. Dulin was appointed receiver and qualified as such, and was authorized to commence, prosecute, and defend all actions necessary for the proper administration of his trust.
(20) Said coupons were transmitted by mail to said trust company, and were accompanied with written notices and demand for payment directed to both Brown and said trust company.
payment thereof, in the absence of an agreement to that effect. Frisbee v. Lindley (1864), 23 Ind. 511; Costelo v. Cave (1835), 2 Hill (S. C.) 528, 27 Am. Dec. 404; Kean v. Dufresne (1817), 3 S. & R. (Pa.) 233; Zerrano v. Wilson (1851), 62 Mass. (8 Cush.) 424; Sweet v. James (1852), 2 R. I. 270; Murray v. Gouverneur (1800), 2 Johns. Cas. (N. Y.) 438, 1 Am. Dec. 177; Smith v. Miller (1870), 43 N. Y. 171, 3 Am. Rep. 690; Edwards v. Harvey (1892), 2 Col. App. 109, 29 Pac. 1024; Anderson v. Brown (1851), 1 Fed. Cas. No. 355.
Having decided that the special findings are erroneous, we do not need to consider the conclusions of law based thereon.
The judgment is reversed, with instructions to grant a new trial.