Indiana Trust Co. v. Finitzer

Hadley, J. Complaint by appellant in two paragraphs: (1) For goods sold and delivered at the special instance and request of the defendant, between the dates of October 25, 1895, and March 5, 1896; (2) on an account stated between the parties on the 15th day of March, 1896, and which the defendant then agreed to pay. The defendant answered the general denial. Trial by the court, and a general finding and judgment for the defendant (appellee). The only assignment is the overruling of appellant’s [648] motion for a new trial, and the only error complained of is that the decision of the court is not sustained by sufficient evidence and is contrary to law. Two things are put in issue by the answer: (1) The purchase of the goods by appellee as averred in the first paragraph of the complaint; and (2) the stating of the account and appellee’s agreement to pay the same, as averred in the second paragraph. The record discloses the following undisputed facts: Christian Koepper, appellant’s decedent, was, and had been for many years, a wholesale liquor dealer in Indianapolis. John Einitzer, husband of appellee, on October 25, 1895, and for about ten years before, was engaged in the saloon business in the same city, and had from time to time purchased a large part of his supplies from Koepper. His wife (appellee) owned in her own right three or four pieces of real estate, including that occupied by the family and by her husband for his saloon, which two occupancies were in the same building. John Einitzer had fallen behind in his payments for goods to Christian Koepper to the amount of $1;900, and on the 25th of October, 1895, Koepper, accompanied by his attorney, went out to the Einitzer place for the purpose of securing an adjustment of the account due him.' Koepper and his attorney on the one side, and Einitzer and his wife (appellee) on the other, had a conference on the subject and reached an adjustment. In this conference Koepper told appellee that he could not sell John any longer; that John had nothing, and already owed him and others; that the property was all hers, and he would not longer sell to John, but, “if she would be responsible, he would continue to supply John with what stock he wanted,” and she replied: “I am running this business. Send on the goods, and I will be responsible.” Koepper further told her that he would have to open the account in her name; and her answer was: “Send on the goods, and I will be responsible,” As a part of the same arrangement and adjustment, [649] appellee borrowed tbe money, by executing a mortgage on her real estate, and paid Koepper ber busband’s account in full to that date. Koepper changed tbe account on bis books on that' date, and thereafter billed all goods sent to tbe saloon to Susie A. Finitzer. After tbe arrangement the license for retailing tbe liquors was continued and renewed in tbe name of John Finitzer. John continued to conduct tbe business, ordered, received, and sold tbe goods, and made payments thereon, and in all respects carried it on as it bad been going before, except that tbe goods delivered by Koepper at tbe saloon were marked in tbe name of appellee. Christian Koepper having died before the trial of tbe cause, appellee and ber husband were both thereby disqualified, and were not, upon appellant’s objection, permitted to testify concerning tbe arrangement and adjustment with tbe decedent which resulted in changing tbe name of tbe consignee of tbe goods. In all matters relating to tbe acknowledgment of tbe debt by appellee and ber promise to pay tbe same, made to the agents of Koepper at subsequent times and out of bis presence, there is a sharp conflict in tbe evidence. Appellant produced tbe attorney who was present for Mr. Koepper at tbe October 25th arrangement, whose testimony concerning tbe same is given in substance above, and which gives rise to tbe inquiry: Was tbe trial court justified thereunder in finding for tbe appellee ? ,We can not weigh tbe evidence upon points where it is in conflict, and we must therefore assume, for tbe court has so found, that appellee did not create a personal liability by acknowledgments or promises subsequently made. The only question, therefore, for decision, is: Does tbe language exchanged between Koepper and appellee on tbe occasion of tbe adjustment of ber busband’s debt constitute appellee a purchaser of tbe goods thereafter delivered at tbe saloon, or a parol promise on ber part to answer for tbe debt, default, or miscarriage of ber husband ? If tbe latter, it was invalid. §6629 Burns 1901, and cases there collected. Tbe burden [650] rested upon appellant to prove that she was the purchaser. In bargaining with her, on terms of his own suggesting, for the purpose of securing a solvent debtor in lieu of her insolvent husband, it was incumbent upon appellant to show by satisfactory proof that she agreed to and did become a bona fide purchaser, and that the arrangement entered into was not a mere fiction for the purpose of charging her as guarantor or as surety for her husband. It is not claimed that appellee in terms agreed to become the purchaser of the goods. The most charged against her is that on being informed by Koepper that he would not longer sell to her husband, but, if she would become responsible, he would continue to supply John — not appellee — with what stock he wanted, she replied: “Send on the goods, and I will be responsible.” Her answer was by no means equivalent to saying that she would purchase the goods herself; and her declaration that “I am running this business,” or “I am running the business,” does not amount to a claim of ownership of the saloon, or of the stock in trade; and there is no evidence that she received in person, or in benefit to her property, any part of the profits or proceeds of the sales subsequently made. Moreover, Koepper informed her that under the arrangement the account would have to be changed from her husband’s name to her name. Why did Koepper deem this information necessary, if it was understood that she was to be the bona fide buyer ? If she was to be the actual purchaser, how else could the account be kept, but in her name ? These considerations, associated with the further facts that the husband renewed the saloon license in his own name, and continued to control and carry on the business, in all respects as it had been done before the adjustment, except to receive the goods billed in his wife’s name, tend to prove that appellee’s agreement was nothing more than a collateral parol promise to answer for the default of her husband; and •we therefore think the court had sufficient grounds for finding that she was not the purchaser of the goods. [651] Appellee had the right to set up the invalidity of tbe contract as a defense under her answer of general denial. Under such an answer the defendant may show that the contract between the parties was a different one from that set forth in the complaint, or that the agreement was void and that no contract at all was made. Jeffersonville Water Sup. Co. v. Riter, 146 Ind. 521, and authorities there collected. We have carefully examined $.11 the evidence given at the trial, and have not been convinced thereby that the court erred in its finding and judgment for appellee. Judgment affirmed. Dowling, J., did not participate in the decision of this case.