Greenwood Construction Co. v. Estate of Lippman

Bierly, J. — Appellant instituted this action below by filing a claim against the Estate of. Maurice B. Lippman, Deceased. The total claim was in the amount of $17,350.00, representing a $10,000.00 note with interest thereon, at the rate of 5% per annum from October 25, 1964, as well, as attorney fees. The note was issued in favor of the Greenwood Construction Company by the decedent, payable in sixty (60) days. Appellees’ defense was alleged payment of the note. The trial court found for the appellees finding that the $10,000.00 note had been paid, but found for the appellant, [489] that interest due had net been paid in the sum of $178.67, and further, that appellant’s attorney was entitled to attorney fees in the amount of $26.80, which was 15% of the amount found due. Costs were taxed against appellees’ estate. Appellant filed its motion for a new trial, which taken as a whole, presents the following issue: whether there was any evidence to sustain the court’s findings that the note had been paid. It is our opinion that there is sufficient evidence to sustain the trial court’s finding. The defense introduced two cancelled checks of appellees’ into evidence'. The first was dated December 27, 1954, and was payable to appellant in the sum of $7,500.00. The second was dated March 19, 1955, payable to appellant in the. sum of $2,500.00. Although these cancelled checks contained no notation stating for what purpose they were issued, the dates correspond with the period of the note in question. There was evidence that 4 or 5 separate loans had been made between the parties around this period, and that appellee had repaid them with cash. Also, the long lapse of time" (over 8 years) before suit was brought could have been taken.’ into consideration by the trial court in its decision. In the case of Pigg et al. v. Cook (1952), 123 Ind. App. 414, 109 N. E. 2d 107, this court said: " ■ “. . . that payment, like any other fact, may be proved by circumstantial, as well as direct evidence, and it is true that delay in asserting a claim after a debt is due for ■ a considerable period of time, less than the period prescribed by law, may be circumstantial evidence of payment sufficient to warrant the court in inferring payment when considered with other circumstances.” The Estate’s Exhibit C, introduced into evidence, was a letter from Mr. Greenwood to Mr. Lewis, attorney for appellee, which stated in part, as follows: “For your information there were either 4 or 5 separate loans made to Mr. Lippman around this..time or- period. [490] They varied and were to the best of my recollection in the following (sic) amounts: 2500. 5000. 7500. 10,000 “Most of the above amounts were given to Mr. Lippman in cash, reason being be needed this money for a Special Purpose. He likewise returned these moneys to me also in cash. I withdrew the money as he needed it from my safety deposit box and returned it when received from him (emphasis supplied). “The 10000.00 note in question was given to Mr. Lippman during a period when both he and I were up to our ears in work and I feel was not paid only because it was misplaced in one of my personal files and found during the time of moving our offices to a new location. /s/ Harold Greenwood” We are of the opinion that the above letter is sufficient to support an inference that all of the loans had been paid in .cash, except the $10,000.00 loan, which, it could be inferred, had been paid by the checks in question. Finally, appellant contends that the assessment of the amount of recovery is erroneous as being too small. The basis for this argument is a stipulation between counsel which is as follows: “Q. Now, Mr. Lewis, I think and I have neglected to mention it, but we did agree on a stipulation in this matter, that if attorneys’ fees were to be allowed in the case that they would be computed on the basis of the Commercial Law League, which calls for, in a case of this kind calls for 25% on the first $750.00 in recovery and 15% of anything over that in recovery and this, of course, is applicable only in the event of recovery, is that right? “A. We did so talk about this. “Q. And it is stipulated, is it not? “A. Yes.” The court’s findings and judgment stated: [491] “That claimant’s attorney is entitled to attorney fees at the rate of fifteen percent (15%) on the first Seven Hundred Fifty Dollars ($750.00) and ten percent (10%) on any amount in excess thereof, by stipulation of the parties, which attorney fees are in the amount of Twenty-Six and 80/100 Dollars ($26.80).” The court’s finding and judgment did in fact correspond with the Commercial League recommended rates. We are of the opinion it was entirely within the trial court’s province to apply the correct rates to the obviously mistaken stipulation on the part of both counsel. It appears that the intent of the stipulation was to apply the Commercial Law League rates and no other. Having found no reversible error, we are of the opinion that the cause of action should be affirmed. Judgment affirmed. Pfaff and Smith, JJ., concur. Cook, P. J., not participating. Note. — Reported in 235 N. E. 2d 715.