166 Ind. 498 | Ind. | 1906
—Appellee sued appellant to recover $1,259.68 for goods and merchandise sold and delivered by it to Corvin Larkin. The complaint discloses that appellee is a corporation doing business in the city of Indianapolis, Indiana, engaged in the wholesale of plumbers’ supplies. The action is based upon the following letter, or instrument, alleged to have been executed by appellant and directed to appellee under the name and style of “Knight & Jillson”:
“Indianapolis, Indiana, June 23, 1900. Knight & Jillson:
Please let the bearer, Corvin Larkin, have whatever he wants at any time, and I will see that the same is paid for. M. J. Stewart.”
The complaint alleges that this letter was by appellant delivered to said Corvin Larkin and by him delivered to appellee company, and that the latter, relying solely upon the promise of appellant, as therein made, furnished and delivered to said Corvin Larkin on and after June 23, 1900, until August 31, 1901, various amounts of goods, wares and'merchandise. It is alleged that beginning with
The case was tried on the complaint and the answer of appellant, which finally consisted of a general denial, plea of payment, and plea of non est factum, and appellee’s reply thereto. Upon the issues joined there was a trial by jury and a verdict returned in favor of appellee for $1,312.76. Appellant moved for a new trial, assigning in his motion the statutory grounds and other reasons therefor. He also moved in arrest of judgment. Both of these motions were denied, and judgment was rendered on the verdict. From this judgment he appeals and the alleged errors upon which he relies for reversal are: (1) Overruling the demurrer to the complaint; (2) sustaining appellee’s demurrer to the third, fourth, fifth, seventh and eight paragraphs of the answer; (3) overruling appellant’s motion for new trial; (4) overruling the motion in arrest of judgment.
After giving these directions to his stenographer appellant was called out of the store, and in his absence the stenographer prepared the letter, or document, set up in the complaint in this action, signed appellant’s name thereto, and gave it to Larkin to deliver to appellee. Larkin carried the letter to Kimberlin, appellee’s secretary, who read it, and then informed Larkin that he had examined in regard to appellant’s rating and that he would be satisfactory as security. Appellant did not see the letter after it was written by his stenographer. On the trial Kimberlin testified that after Larkin had delivered the letter he (Kimherlin) called appellant up over the telephone and read the document to him and asked him if it was all right, and appellant answered that it was. Appellant on the trial, however, denied that Kimberlin called him up and read the letter to him over the telephone.
Prior to the incorporation of the appellee company it did business as a firm under the name of “Knight & Jill-son.” The evidence discloses that appellee first opened an account with Larkin on May 4, 1900, and the goods sold to him between that date and June 23 following, the date of the letter in suit, was $263.92. From June 23, 1900, to August 31, 1901, the amount of merchandise sold by appellee to Larkin was $4,626.03. In May, 1901, Larkin had paid all the bills and accounts which he owed appellee at that time. The merchandise involved in this action was sold by appellee to Larkin between some date in May,
The undisputed evidence in this case shows that about November 10, 1900, Kimberlin called Larkin into the office of the company and returned to him the letter or instrument set up in the complaint and the one upon which this snit is based. The evidence given by Larkin relative to this transaction is as follows: “I will ask you whether Mr. Kimberlin gave you this letter along about November 10, 1900, and told yon to have Mr. Stewart put some limit as to amount in it? A. He told me that Mr. Jillson said the letter was no good as it was, and for me to have Mr. Stewart put a limit to it, but I did not. I gave it back to him the way it was. How long did you keep this letter before giving it back to Mr. Kimberlin ? A. I do not remember. "Why did you not give it to Mr. Stewart and have a limit as to the amount put in it? A. Because I had bought so much goods thei’e, and paid them the money, that I did not think I needed security, and because they said it was no good anyhow. Did you state to Mr. Kimberlin the reason given in your last preceding answer why you returned this letter to him? A. I do not remember. Did Mr. Kimberlin ask you to return it to him before you did so return it ? A. I am not sure, but I think he did.”
The evidence given by Kimberlin, the secretary of appellee company, who testified on the trial in behalf of his company in regard to the same transaction, is as follows: “Was there any conversation, I will put it, between you [Kimberlin] and Mr. Larkin about that letter on or about, or in or about, the month of November, 1900 ? A. There was. Were you the person yourself who did the talking with Mr. Larkin on that occasion? A. I was. And did you have this letter of credit, as he calls it, in your hands at that time? A. I did. And did yon give it to Mr. Larkin at that time ? A. I did. How long did he keep it ? A. Eour or five days; perhaps a week. Did he return it
It follows from the conclusion which we have reached, that the evidence does not sustain the verdict of the jury, and the judgment is therefore reversed, and the cause remanded.