44 Ind. App. 238 | Ind. Ct. App. | 1909
Appellant was the owner of 200 acres of real estate in Cass county which was heavily encumbered by numerous mortgages, amounting to between $9,000 and $10,000. Under an arrangement between appellant and appellee, appellee was to provide the funds with which to pay off the debts on said land. To secure the payment of the funds thus advanced, appellant, together with her husband, executed to appellee a warranty deed to said land, and appellee in turn executed to appellant a title bond for the re-conveyance of the same upon conditions hereinafter set out. A quitclaim deed to appellee for said land was also executed by appellant and her husband, and was placed in escroAV. The land was afterwards sold, and the purchase price paid to appellee, who deducted therefrom the amount of the funds advanced by him, together with seven per cent interest thereon and certain costs and expenses incurred in discharging the debts. The residue — less about $1,000 — he paid over to appellant, who brought this action to recover the amount retained by appellee, over and above the amount expended, Avith interest.
The complaint is in two paragraphs. The first is an action
A copy of this itemized account is set out in appellant’s brief. We have made careful computation of all the amounts set out in this statement, for which appellee claimed he should be credited, including the $500 for commission and the final payment made to appellant, and find that the total of such claims is $15,248.32. Deducting this from the amount received by him, as shown by the statement, which is $15,600, leaves a balance of $341.68 still due to appellant. Also on April 15, 1905, the account shows that appellee had paid out $6,153.11, on which appellant was entitled to a credit of $341.82, the balance remaining of the $1,000, first payment on the purchase of the land received by appellee, as before mentioned. This credit was not given, and under the account appellant is charged with interest on $6,153.11 from April 15, 1905, until March 1, 1906, when he should have been charged interest upon the amount remaining after deducting said sum of $341.82, namely: $5,811.29. The interest charged on the amount stated in this item of the account was $377.51, which is $21.92 too much. Adding said
The statement prepared and submitted by appellee, upon which settlement was made, is gotten up in a manner calculated to deceive any one careless in business methods and unfamiliar with accounts, both of which appellant’s agent is shown to have been. The items of charges are not shown in one column so as readily to be added, but are scattered about the statement. The footings are incorrect, and to detect this it is necessary to make a complete new statement, collecting together the various items of charges and adding them.
It is clear that appellee never did give appellant credit for the $341.82, balance of the first payment. The balances shown in the statement are arbitrary and forced, and appear to have been prepared by appellee in accordance with his principle, as declared on the witness-stand, when explaining why he had charged $500 for commission in carrying the deal through, after he had testified that such services were worth only $200, that “he did not believe in cracking a nut and giving somebody else all of the good.” The motion for a new trial should have been sustained.
Judgment reversed, with instructions to grant a new trial.