19 Ind. App. 596 | Ind. Ct. App. | 1898
— Appellant was plaintiff below. The complaint is in two paragraphs. The first, upon an account, alleges that appellee is indebted to appellant for goods and merchandise, to wit, beer and pop, sold and delivered by appellant to appellee between the 3rd day of July, 1895, and the 2nd day of October, 1895, in the sum of $150.00. A bill of particulars is also made a part of the complaint. The second paragraph alleges that appellant is a corporation, organized and doing business under the laws of the State of Indiana, and that in the year 1895, before this suit was commenced, Phillip Miller, Christian Kestner, and Edward Hartman were partners in the saloon business in Elwood, Madison county, Indiana, and doing business under the firm name of Miller, Kestner & Co.; that in said year and before the commencement of this suit, said firm was indebted to the appellant in the sum of $150.00 for beer and pop sold and delivered to said firm of Miller, Kestner & Co., in said' year, said sum being due and unpaid. Appellee, Minnie Hartman, purchased of Miller, Kestner & Co., all their saloon property, stock, and fixtures of every character, and as a part of the purchase price for said property she agreed with Miller, Kestner & Co., and with the appellant, that she would assume and pay as a part of the consideration for said saloon fixtures and stock, the sum of $41.00 then and there owing by Miller, Kestner & Co. to the appellant, and appellee then and there directed appellant to charge her with said sum of $41.00 on said account owed by Miller, Kestner & Co., which they did; that in consideration of other money paid and assumed, and the
Appellee answered in four paragraphs:
First, general denial. The second alleges that the goods sold were whiskey, liquors, and beer, and sold for an unlawful purpose; that they were sold to her and were to be delivered by appellant to a certain saloon in Elwood operated by Edward Hartman, and sold for the purpose of being retailed in said saloon, and that said Hartman had no license to retail liquors, and that said goods as described in the second paragraph of complaint, were delivered to said firm at their place of business, and said firm operated a saloon in said city, and said Miller, Kestner & Co. had no license as required by the law of the State of Indiana, and that appellant knew it. The third alleges that at the time 'the goods were purchased, appellee was a married woman living in the State of Indiana, and she made such contract as surety for the purchase of the goods, and that said goods were intoxicating liquors, and were to be retailed in a certain saloon operated by Edward Hartman, appellee’s husband; that from said goods appellee received no benefit nor has her separate property or estate been benefited in any manner by the same; that the same was used by Edward Hartman in conducting said saloon, and the proceeds derived therefrom were used by him, and that neither appellee nor her separate property received any benefit therefrom, and that as far as said first and second paragraphs Of complaint have reference to the alleged purchase of said saloon
A demurrer was filed to the second, third, and fourth paragraphs of answer. It does not appear from the record that the court ruled upon said demurrer. The cause was put at issue by reply of general denial. At the request of appellant, the court made a special finding of facts, upon which judgment for costs was rendered in favor of appellee, and the motion for judgment in favor of appellant for $41.00 was overruled. Appellant’s motion for a new trial was overruled, and an exception taken.
The first, second, third, fourth, fifth, and sixth assignments of error challenge the sufficiency of the different paragraphs of appellee’s answer; the seventh assignment is that the court erred in its special finding of facts; eighth, that the court erred in its con
The material facts specially found are fairly within the issues. The same questions are presented, upon them and by the errors claimed by the first, second, third, fourth, fifth, and sixth assignments of error. It is not, therefore, necessary to consider the sufficiency of the answer, nor to pass upon the effect of the pleading of appellant of the reply to these answers while a demurrer thereto was still pending, as a correct statement of the law may be made upon the facts found. Tulley v. Citizens’ State Bank, 18 Ind. App. 240; Woodward v. Mitchell, 140 Ind. 406; Smith v. Wells Mfg. Co., 148 Ind. 333; Scanlin v. Stewart, 138 Ind. 574; Ross v. Banta, 140 Ind. 120; Walling v. Burgess, 122 Ind. 299; State, ex rel., v. Vogel, 117 Ind. 188; Louisville, etc., R. W. Co. v. Downey, 18 Ind. App. 140.
The seventh assignment of error, and one of the reasons set out in the motion for a new trial are the same, — that the court erred in its special finding of facts. Under the familiar rule, if there is any evidence to support material facts of the special finding, this court will not weigh the evidence and will sustain the finding.
We deem it necessary to set out parts only of the special findings, in substance as follows: That appellant is a corporation; in 1895 and 1896 it had an agency at Elwood, Indiana, and that John C. Bell was its agent, having full control of the business of appellant in selling its goods at Elwood; appellee was a keeper of a house of ill fame in Elwood, Indiana; married to Edward Hartman on the 12th day of June,
Counsel for appellant contend that there is no evidence to support the finding of the court that appellant had full knowledge of the facts relative to the licensing and circumstances under which this saloon was conducted. The evidence shows that one John C. Bell was the agent and representative of appellant for the sale of its goods at Elwood. Bell testified that he knew Garner had taken out a license to conduct the saloon; that he knew that the appellee had bought the saloon and put her husband in charge, and that he was operating the saloon under Garner’s license; he understood that Miller, Kestner & Hartman (“and all of them”) were running the saloon under Garner’s name. Bell further testified that he sold beer to the firm of Miller, Kestner & Co.; that ■they quit business about June 17th, at which time they owed appellant $41.00 for beer; that they were running the saloon, the furniture and fixtures which they had bought of John Garner; that Minnie Hartman (appellee) told him she had bought it and said she would pay the $41.00 due; that the $41.00 was charged to Miller & Kestner, and she told him not to charge it to her, as she did not want anybody to know she was running a saloon as she would be prosecuted. He also testified that he knew the kind of saloon that
The finding of the court shows that appellant had sold to Miller, Kestner & Hartman, and Miller & Hartman, beer to be sold at retail in said saloon and that said $41.00 was an unpaid balance due from said Miller, Kestner & Co., and Miller & Hartman at the time of the purchase of appellee; that said beer for which said balance was due was sold to the parties aforesaid with the knowledge that it was to be sold by-the purchasers at retail in said saloon' without any other license than that issued to said Garner. There is evidence to support the finding of the court.
It thus appears from the record that appellant was a party to the violation of law, identifying itself with the transaction from the sale of the saloon by Garner to the purchasing by appellee. The exhibit filed with the complaint and the evidence- showed that only beer was sold, and that appellant knew the use that was to be made of it, such use being against the express provision of the statute and against public policy. The law will not assist it in enforcing this contract, but will leave the parties in the situation in which they placed themselves. Woodford v. Hamilton, 139 Ind. 481; Hutchins v. Weldin, 114 Ind. 80.
Appellant relies upon the decision of this court in Pierce v. Pierce, 17 Ind. App. 107, to support its claim for judgment for $41.00. The case before us is clearly distinguishable from the case cited. The- court there held that a legal and illegal consideration entered
