*1 note, only paid was entitled $311.46, the court’s de- the evidence does not sustain against cision that should recover any amount, contrary pellant in and the decision law.

Judgment that the reversed with instructions motion proceedings that further for new trial sustained and Bridewell, opinion. herein be not had inconsistent with concurring J., in the result. Savings Gary-Hobart and Loan Association

Strong. 14,723. Rehearing May 18, denied November Filed [No. 24, 1934.] *2 Metz, appellant. B. D. Thiel and Merritt Oscar Hedman, Ray appel- George E. Hershman and lee. upon Appellee, solicitation of of

Kime, appellant, by pellant, paid check to and con- $250.00 following: therewith, temporaneously executed the undersigned hereby applies for “The member- Savings Gary-Hobart Association, ship Rural, & Loan by agrees rules, regu- bound be Association, agrees by-laws of the lations membership of on the purchase a certificate fol- lowing (No. 287) basis: agree pay “I to the said Association cash- my a application of as the sum mem- $250.00 with fee, agree deposit bership monthly I and further deposits until such minimum sum to- $25.00 gether declared the Associa- with the dividends amount to shall $5000.00. tion privilege (Gary that I have the “I understand withdrawing any part

Office) all or of the de- .(excepting thereof account posits made on together membership fee) with all dividends de- such withdrawal. thereon to date of clared per I that will receive “I further understand 61/2 any paid my can be deposits before dividend cent on Association, capital permanent earnings all above participate in half of I will 6V2 charged any with I will be per not cent and penalties delinquent fines payments. because of Strong, Harry 5, 1, Name: H. R. Address F. D. Date: March Box Point, Fritzche & Reiser. Crown Ind.” being clearly defendant’s Exhibit which shows membership that the fee could not with- $250.00 drawn. Thereafter a he received certificate membership shows on its face that was, fee and that the terms of said certifi- cate, purchase $5,000.00 entitled to That worth of stock. pass at the same time that he he received a book and became familiar about with the contents thereof part April, November, first In appellant stating went and asked for his $250.00 he understood from the that he could withdraw money giving notice; at time after that he was by appellant’s president informed did *3 any right money have because it was to withdraw this membership president stock and then showed inquired, pellee said Exhibit 1 and “Isn’t this card signed agents) you (one when Fritzche was replied, appellee after the additional there?” to which pro- question you been what did tell him?” had “And my was; pounded, “I I him it was told him it told handwriting.” Appellant in informed then get compelled to to interest he would order 1. comply said Exhibit with the conditions of agents, him appellant who first sold then its told stock, informed him purchasing had on the idea of thereon, appellant which interest that he would draw never been instructed replied had its misrepre- they had and if sell under those conditions they order from had no in to sell that sented order appellee exe- that when disclosed to do so. The evidence agents that by appellant’s 1 he was told Exhibit cuted card. merely an identification such card appellant, get- in The reference called ting money, November, 1927, several times between brought, February and the time suit was to wit: 1931. paragraphs, complaint

The was in two the first for deceit, money fraud and second for had and re- alleging misjoinder Demurrer was filed ceived. of. paragraph action for the reason that the first causes of contract, in tort and the second in which de- sounded An filed murrer was overruled. answer was in three general denial, paragraphs, the first a al- second laches, leged up and the third set the con- a defense of tract, being said Exhibit This case was set for appellant statutory ^plication a verified trial and filed change county, application venue from jury then before a Trial was had was denied. in the sum of was entered by

$300.00. appellant, for new trial was filed Motion causes, containing thirty-three which motion was over- appeal followed. ruled this assigned are properly that the court in erred

Errors overruling appellee’s appellant’s complaint; demurrer to overruling appellant’s motion for a trial. new grounds necessary to be discussed in the mo- only not the verdict trial are whether or new tion for contrary evidence and is sufficient jury sustained presented properly raised and in sev- This is law. thereto is relative deter- ways and conclusion our eral the case. minative litigant may a be stated dif

A of action cause proof failure prevent ferent in order forms *4 being compelled rights, without to secure Snyder Snyder v. suit. a second resort 399; Miller, Admr. White (1865), 25 Ind. (1885), Therefore Twp. 101 Ind. 503. River School ground assignment error is appellant’s first the misjoinder reversal. And even if there was a herein, admitting causes of action and we are not such fact, such error is harmless Section 1926, §2-1009, 1933, §113, Burns Burns Baldwin’s says: “No any shall ever be reversed for sustaining error overruling committed in or a demur- misjoinder rer for Morgan causes of action.” Henry (1931), Brick App. Co. 92 Ind. E. 176 N. 237; Coan v. Grimes 63 Ind. 21. record discloses that had attended school

and was able to read and write and understand he what

read; card, that he read the understood it and signed nothing it. There is ap to show that pellant’s agents attempted prevented to or reading ascertaining from what it said. signing admits Exhibit 1 and that he had opportunity full reading and did read it. After light it and in evidence, of the can he be heard to say that a fraud in perpetrated law upon was Being him? having able to read and read Exhibit presumed 1 he is to have known what it con and, therefore, right tained rely had no on state by appellant’s agents ments made legal as to its effect. Clem v. Newcastle D. & R. R. Co. Ind. In the case at bar explicitly says Exhibit 1 subscription fee could not be $250.00 withdrawn from association, therefore, alleged statements of card was purposes for identification and that could be withdrawn at time nothing than expression was more a mere opinion; though appellee, intended to deceive not, law, point adequate purpose, to that be signed the instrument cause to which he his name terms. bound the to its Clem v. Newcastle & Co., supra. R. D. R. clear, positive, unambigu-

Exhibit is written *5 language, comprehension a man. the ous within intelligence testified ordinary and inasmuch as he he is what read he could read and understand that presumed to Exhibit 1 is the contents of bound meaning. knowledge Fidelity and their have full Casualty Teter 136 Ind. N. Y. Co. of E. 283. N. agents he know Appellee not the testified did they day until the before never saw them proached him asked that he subscribe for the stock. nothing there between is to show that existed There agents trust a relation of and confi- appellee and the opportunity He had to and did avail him- dence. the right examine the contract. allow the To self of age intelligence repudiate persons and mature contracts, they opportu- have an their written delivering, read before nity read and do would uncertainty to business transactions ren- an lend making Draeger unsafe. Kent of contracts der County Assn. 242 Mich. 219 W. Sav. N. nothing ap is in the record to indicate that There confirmed, pellant appellee, to the ever ratified agents alleged and statements of its acts allegation is no further there said by appellant authorized to make such ever were scope of the Acts of outside of their statements. principal, employment, unless confirmed are not binding upon principal. such judgment herein is reversed with instructions grant new the motion for a trial.

Curtis, participating. not Rehearing.

On Petition for rehearing petition denied J. The with Kime, following memorandum: erred, holding complains the court complete, opinion in the set out that the contract signing at the time of the reason that figures spaces where the contract said appear were $250.00, and $5,000.00, opinion Although may be clear in blank. that such was'applied with the idea law in this case *6 the execution of the time of spaces blank at the were complete at one the contract was but that contract support appellant. this To delivered to it was the time 1243; 120, page J. 13 C. J. §§119 we cite Angle Ins. 308; Northwestern Co. page §133 Life 556; 330, Thomas Law. Ed. 92 U. S. 301; Pac. Cassetta 177 Cal. Fursman App. 288 Pac. 830. (1930), 106 Cal. v. Baima Curtis, participating.

Lasear, et al. Inc. v. Anderson 15,309. Filed November 1934.] [No.