Hunt v. Listenberger ( 1895 )

Ross, J.

The' facts in this case as alleged in the complaint and admitted by the parties are in substance as follows :

In 1891 the trustee of Pennsylvania Township, St. Joseph county, Indiana, purchased from the firm of Hunt & Adams, the appellants, through their agent, H. J. Hirshberger, a road machine, and issued in payment therefor two warrants calling for ninety dollars each, which were delivered to said agent, the first of which warrants was payable September 1st, 1892, and the second, September 1st, 1893. Afterwards Hirshberger sold the two warrants to the appellee, Miner E. Listenberger, for the sum of one hundred and twenty-five dollars, and after using a part of the money received for the payment of expenses incurred by him as appellant’s agent, he remitted the balance within a week to the appellants, informing them of what he had done. When the warrants fell due they were not paid, and appellee having brought this action for their collection, Pennsylvania township filed a bill of interpleader, admitting its liability on the warrants, but alleged that the appellants, Hunt & Adams, claimed the amount due, and it asked that it be allowed to pay the amount thereof into court and that the court then determine as between appellee and appellants which of them was entitled to the same. Upon issues joined there was a trial by the court and a finding and judgment in favor of appellee, Listenberger.

It is insisted by the appellants that both the first and second paragraphs of the complaint, the first declaring on the warrant which fell due on September 1st, 1892, and the second on the warrant which fell due on September 1st, 1893, are insufficient forthe reason that the warrants which are payable to the appellants show that they were never assigned by them to appellee, the complaint alleging that they were assigned in writing by endorsement on the back thereof.

On the back of the warrant due September 1st, 1892, a copy of which was filed with the first paragraph of the complaint is the following endorsement:

“H. J. Hirshberger, Agent,

Hunt & Adams,”

and on the back of the other, a copy of which was filed with the second paragraph', the following :

“Hunt & Adams,

By H. J. Hirshberger, Agent.”

The contention of counsel for appellants is that these endorsements were nothing more than the personal endorsement of H. J. Hirshberger, and in support <of this contention many authorities have been cited in "which the courts hold that when a party signs or endorses a note attaching to his signature such words as “President,” “Trustee,” “Secretary,” or “Agent,” they are merely “descripiiopersonen,” and the obligation a personal one of the party signing. Among the cases cited are the following: Swarts v. Cohen, 11 Ind. App. 20; Pitman v. Kintner, 5 Blackf. 250; McClure v. Bennett, 1 Blackf. 189; Mears v. Graham, 8 Blackf. 144; Prather v. Ross, 17 Ind. 495; Hobbs v. Cowden, 20 Ind. 310; Kendall v. Morton, 21 Ind. 205; Pearse v. Welborn, 42 Ind. 331; Hays v. Crutcher, 54 Ind. 260; Hayes v. Matthews, 63 Ind. 412; Hayes v. Brubaker, 65 Ind. 27; Williams v. Second Nat'l Bank, 83 Ind. 237; McClellan v. Robe, 93 Ind. 298; Roger Williams Nat'l Bank v. Groton, 17 Atl. Rep. 170; McCandless v. Belle Plaine, 42 N. W. Rep. 635 (4 L. R. A. 396); Williams v. Miami Powder Co., 36 Ill. App. 107; Lee v. Percival, 52 N. W. Rep. 543; Lay v. Ramsdell, 52 N. W. Rep. 208; Matthews v. Dubuque, 54 N. W. Rep. 225 (19 L. R. A. 676); Davis v. England, 141 Mass. 587; and Sturdivant v. Hull, 59 Me. 172.

While the argument of counsel is very plausible, it has no application in this case. As the record comes to us, we find on the back of the one warrant, not only the name of ‘ ‘ II. J. Hirshberger, Agent, ” but also that of ‘ ‘ Hunt & Adams. ” The endorsement is not H. J. Hirshberger, Agent for Hunt & Adams, but as it appears to us, not only did A. J. Hirshberger, Agent, endorse it, but also the appellants by the name and style of Hunt & Adams. To accept as correct the contention of appellant’s counsel would require us to assume that Hirshberger signed the name of Hunt & Adams on the back of the warrant, but this we cannot do. The complaint and exhibits as copied into the record, do not show that to be a fact, but on the contrary, it shows that the endorsement is that of the firm of Hunt & Adams.

There can be no question but what the endorsement of the second warrant is sufficient.

The third, fourth, fifth and sixth specifications of error which are based upon rulings of the court in setting aside the order for a continuance, refusing to grant a continuance, setting the cause down for trial, and the admission of certain evidence on the trial, are not properly assigned, all of the same being proper causes to assign in an application for a new trial. Kent v. Lawson, 12 Ind. 675; Jeffersonville, etc., R. R. Co. v. Riley, Admx., 39 Ind. 568; Carr v. Eaton, 42 Ind. 385; Westerfield v. Spencer, 61 Ind. 339; Morgan v. Hyatt, 62 Ind. 560.

Rulings which properly constitute causes for a new trial cannot he assigned independently as specifications of error in this court. McClosky, Admr., v. Davis, Admx., 8 Ind. App. 190; Maybin v. Webster, 8 Ind. App. 547; Louisville, etc., R. W. Co. v. Terrell, 12 Ind. App. 328.

The last specification of error is that the court erred in overruling appellants’ motion for a new trial.

The rulings of the court in setting aside the order of continuance, on the application for a continuance, and in the admission of certain evidence on the trial, are all embraced in and are causes for which a new trial was asked.

There was no error in setting aside the order continuing the cause. The continuance was granted by the court at the instance of counsel for appellant upon a misunderstanding on the part of the court in supposing from the statement made by appellants^ counsel that counsel for appellee was consenting thereto. When the appellee’s counsel ascertained that an order continuing the cause had been entered, he moved to set it aside; denying that he had either consented or agreed to continue the trial of the cause, and the court thereupon set aside the order. The granting of the order and setting a time to take depositions beyond the time set for the trial of the cause did not necessarily continue the cause. And the mere fact that counsel for appellee was present in court at the time appellants’ counsel asked for and induced the court to make the order continuing the cause, is not of itself sufficient to bind appellee unless his counsel heard the statement and made no objection thereto. '

We also think the court did not err in overruling the application of appellants for continuance. This application is based upon the fact that after appellants’ counsel had induced the court to enter the order for a continuance as above stated, he notified his clients that they need not appear on the day set for the trial, and for that reason they were not present. That part of the affidavit having reference to what their testimony would be and that the same facts could not be proven by any other witness whose testimony could be as readily procured, etc., is probably sufficient, but when we consider that part which attempts to excuse their absence in connection with the record which discloses the manner in which the order behind which they seek to shelter was procured, we cannot fail to say that it was evident that their absence was their own fault; and if by reason thereof, they did not get the benefit of their defense, they must suffer.

There was no error in admitting in evidence the endorsement found on the back of the warrants. The testimony of the agent, Hirshberger, shows not only that he made them, but that the proceeds of the sale were transmitted to the appellants, and that he personally explained to the appellant Hunt, that he sold the warrants to the appellee, and as he says, “telling him all about it why I had done so.” The appellants retained the money which they received from appellee and at no time until the commencement of this action so far as the evidence discloses, in any way, denied the transfer, or the right of Hirshberger to make it.

The evidence is sufficient to sustain the verdict. A right result seems to have been reached in this case, and inasmuch as all of the objections urged by the appellant are merely technical and do not go to the merits of the case, we would hesitate about reversing the judgment, even if some such objections should be found to be well taken. It is different when this court is in doubt as to the justness of the result reached, for, in such cases, technical objections are sometimes as available as those more substantial. But not so in this case.

Filed November 26, 1895.

Judgment affirmed.

Lotz, J., did not participate in the decision of this case.