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(146 N.E.)

Appeal from Circuit Court, Greene County; | tion. On September 19, 1923, Good was disThos. Van Buskirk, Judge. charged as a bankrupt from all debts except such as are by law exempted from the operation of a discharge in bankruptcy.

Action by the New Union Lumber Company against Lewis E. Good and others. Judgment for defendants, and plaintiff appeals. versed, with directions.

Re

The only error presented is the action of the court in overruling appellant's motion for a new trial, under which it is assigned that

D. W. McIntosh, of Linton, and E. W. Mc- the decision of the court is contrary to law. Intosh, of Bloomfield, for appellant.

A. M. Beasley, of Linton, for appellees.

[1] It is a well-established rule of law that a discharge in bankruptcy does not release a lien created before the proceedings in bankruptcy. Truitt v. Truitt, 38 Ind. 16; Pierce v. Wilcox, 40 Ind. 70; Catterlin v. Armstrong, 101 Ind. 258; Haggerty v. Byrne, 75 Ind. 499; Holland v. Cunliff, 96 Mo. App. 67, 69 S. W. 737; Jensen v. Dorr, 159 Cal. 742, 116 P. 553; Loveland on Bankruptcy (3d Ed.) § 285.

NICHOLS, J. Action by appellant against appellees Good, who were husband and wife, and Brewer, to collect an account for lumber furnished in the repair of a certain storeroom, and to foreclose a mechanic's lien securing the same. After issues which presented the questions hereinafter considered, there was a trial by the court which resulted in a finding and judgment against appellant from which, after appellant's motion for a new trial was overruled, this appeal. The facts, which are undisputed, are sub- 1914, expressly provides for liens upon buildstantially as follows:

[2] At the time the material was furnished, it is undisputed that the storeroom for which it was furnished was the property of appellee Lewis Good, though located on his wife's land. Section 8295, Burns' Ann. St.

ings for which material has been furnished. Appellee Edith Good was, during the time Clearly under the undisputed evidence, aphere involved, the owner of lots 7 and 8 in pellant had a right to have his lien against block 4 in Hubbard's First addition to the the building foreclosed, though subsequent to city of Linton, Ind. These lots were con- the time it was acquired the storeroom was tiguous. There was a dwelling house on lot sold in the bankruptcy proceedings to appellee 8 in which appellees Good lived. Appellee Brewer. The lien having attached, the same Lewis Good owned the storeroom for the was not divested by the sale. Truitt v. Truitt, repair of which material was furnished, and 38 Ind. 16; Pierce v. Wilcox, 40 Ind. 70; moved it from another lot onto the east end Catterlin v. Armstrong, 101 Ind. 258; Hagof lot 7, and thereafter contracted with ap- gerty v. Byrne, 75 Ind. 499; Holland v. Cunpellant for the material for the repair there-liff, 96 Mo. App. 67, 69 S. W. 737; Jensen v. of which was furnished by appellant, and which is the basis for the mechanic's lien in suit. At the time of this action, appellee Lewis Good was running his store in said storeroom.

On June 27, 1922, and within 60 days after the material was furnished, the mechanic's lien was filed. On August 3, 1922, appellant Lewis Good filed his petition in voluntary bankruptcy, and on August 24, 1922, filed his schedule in which he listed appellant's claim for material as a preferred claim. The above room was sold in the bankruptcy proceeding to appellee Brewer, but there is no evidence of his further connection with the transac

Dorr, 159 Cal. 742, 116 P. 553; Loveland on
Bankruptcy (3d Ed.) § 285.

From what we have said it follows that the decision of the trial court is contrary to law.

The judgment is therefore reversed, with directions to the trial court to set aside its finding and judgment, and, as there is no dispute as to the essential controlling facts of the case, the trial court is further directed to enter a finding herein for the appellant, and to render its decree foreclosing appellant's lien and ordering said building to be sold to satisfy the same, with right to remove the building within 90 days.

the conclusion stated is the only matter presented on this appeal. The only question we have to decide is, Upon the facts found, did the court err in its conclusion of law?

FURMAN et ux. v. GLUECK et al.
(No. 11923.)

(Appellate Court of Indiana, Division No. 1.

Feb. 18, 1925.)

1. Mortgages 319(3)—Facts found held to warrant inference that broker was not to procure credit on purchasers' contract as agreed until completion of building on lot.

Facts in action to foreclose mortgage found held to warrant inference that credit agreed to be procured by mortgagor on contract negotiated by him as broker for purchase of lot and erection of building thereon, in consideration of like credit on the secured note given by him to purchasers for other property, was not to be procured until completion of building.

2. Appeal and error 842 (1)-Whether broker broke contract to procure credit on purchasers' contract held fact question for trial

court.

Whether broker broke contract to procure credit on contract for purchase of lot and erection of building thereon, in consideration of purchasers' giving like credit on his note to them for other property, held question of fact for trial court.

The material facts of this case are, as found by the court, in substance as follows: That on and prior to the 10th day of May, 1921, the appellants were the owners of, and in possession of, certain described real estate (a lot in the city of Gary, Indiana), on which was situated a building used for residence purposes, and in which the appellants were then residing; that on said date appellants sold said property to appellee, David Glueck, for $3,150; that said Glueck on said date executed his promissory note to appellants for said sum, his wife also signing said note; that said Glueck and wife also on said day executed a mortgage on the premises purchased to secure the payment of said note; that said note was, by its terms, due in three years, and bore interest at the rate of 7 per cent. per annum, payable semiannually; that pursuant to an arrangement between the parties the appellants continued to occupy a portion of said house, rent free, until November 1, 1921; that the note so exe

3. Bills and notes 136-Payees held not en-cuted was at once delivered to appellants, titled to repudiate contract to give credit on

note.

Contract to give credit on note, in consideration of maker obtaining like credit for payees on their contract for purchase of lot and erection of building thereon, held valid and binding on payees, who could not repudiate it, and insist on maker's payment of full amount of note, so long as contract remained unbroken by him. 4. Mortgages 292 (8)—Cannot be foreclosed as against purchaser complying with terms of vendor's note and mortgage.

In absence of finding that purchaser of lot, subject to mortgage securing vendor's note, failed to comply with terms of note and mortgage, latter cannot be foreclosed as against

him.

Appeal from Circuit Court, Lake County; E. Miles Norton, Judge.

Action by Paul Furman and wife against David Glueck and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

George P. Michaely, of Gary, and Pattee & Johnson, of Crown Point, for appellants. Gavit, Hall, Smith & Gavit, of Whiting, for appellees Glueck.

David B. Fickle, of Hebron, and Geo. E.

but the appellee David Glueck retained possession of said mortgage under his promise to appellants to take the same and have it recorded; that said Glueck did not have said mortgage recorded, but returned it to the appellants about August 1, 1921, and they had it recorded on August 3, 1921.

The court further found that in closing up said transaction of the purchase of said property the appellee David Glueck took with him to the home of said Furman, a stenographer and a typewriting machine, and that said note and mortgage were then and there prepared by said stenographer on said machine, as was also the deed of conveyance to said property, executed by appellants to said Glueck.

The court also found that, after said note had been signed by said Glueck, he (Glueck) requested Paul Furman, one of the payees named in said note, to write his (Furman's) name on said note, in the upper left-hand corner thereof on a line with and just to the left of the date written on said note, which request was by said Furman complied with, and the name written as requested; that on several occasions between May 10 and May

Hershman, of Crown Point, for appellees 20, 1921, said Glueck interviewed the appelStanley.

ENLOE, J. This was an action by the appellants to foreclose a mortgage on certain real estate, and for other relief. The cause being at issue was submitted to the court for trial, with a request for a special finding of facts, and a statement of conclusions of law. This was done; the conclusion stated was

lants and solicited them to enter into a contract with the Robert R. Cenek Company for the purchase of a lot from, and the building of a house thereon by, said Cenek Company; that on May 20, 1921, the appellants entered into such a contract with said company, by the terms of which the appellants agreed to pay to said company, in installments, the sum of $10,650, for a certain designated lot and for a building, designated as a "flat," to

(146 N.E.)

unpaid on said note; that thereafter said Stanley purchased said property of said Glueck as being subject to a mortgage lien in the sum of $1,000, which sum and lien said Stanley assumed and agreed to pay; that said Stanley tendered to appellants, on the 12th day of November, 1921, the sum of $35, that being the semiannual interest installment due on said sum of $1,000, which said Stanley had assumed and agreed to pay, but appellants refused to receive it, claiming that they were entitled to receive the semi

and that the appellants then and there paid to said company the sum of $500 on said contract; that appellants subsequently paid two additional installments, each in the sum of $500 on said contract; that at the time said contract was entered into between said parties said Glueck, who was present and who had interested appellants in said matter, and who had negotiated with them in reference thereto, told said appellants that he (Glueck) would secure them a credit of $2,150 upon their said contract with the said Cenek Company, if they would give to him, and permit | annual interest on said entire principal of him to enter a credit of $2,150 upon, the aforementioned promissory note; that the said appellants thereupon produced said note and permitted the said Glueck to then and there write upon said note, above and over the name of Paul Furman which had theretofore been written upon said note as heretofore stated, the following: "Received from David Glueck on account $2,150, June 20th, 1921," and that said Glueck thereupon at once returned said note to appellants, who have since been in possession of the same.

The court further found that after said contract was entered into between appellants and said Cenek Company, said company proceeded with the construction of said building upon said real estate as provided for in said contract, and continued the work of constructing said building until some time in July, 1921, when said company, by reason and because of the refusal of said appellants to further carry out and comply with their said contract of purchase, ceased work on said building; that said Glueck had made arrangements with said Cenek Company whereby the net profits of said building contract over and above the sum of $8,500, plus the cost of negotiating certain loans and mortgages, should be applied by said Cenek Company and credited to appellants upon their said contract of purchase.

The court further found that said Glueck, after he had purchased said property from appellants, sold said property to appellee James H. Stanley on the 22d day of June, 1921; that while said negotiations were in progress, about June 13, 1921, said Glueck informed Stanley that he had purchased said property from the appellants for the sum of $3,150, and had given the appellant his note for said sum secured by a mortgage on said real estate, and that there was a credit upon said note for the sum of $2,150; that said Stanley, on or about June 13, 1921, called upon the appellant Mary Furman, and inquired of her as to how much mortgage indebted ness remained against said property, and that said Mary Furman informed him that the remaining balance unpaid was $1,000; that thereafter said Mary Furman exhibited to said Stanley, and to his attorney who accompanied him, said note and the credit thereon of said sum of $2,150, and told them that $1,000 was the amount of the balance

said note, viz. $3,150; that said Stanley also tendered to appellants the interest due May 10, 1922, and November 10, 1922, which they refused to receive, and that said sums of money had been brought into court and paid to the clerk thereof, for the use and benefit of appellants; that said note did not contain any accelerating clause, but that said mortgage did provide that a failure to pay the interest thereon when due should render said principal note due.

The court further found:

"That the defendant James H. Stanley, at all times indicated in these findings, has stood and now stands ready and willing to pay the interest due upon the sum of $1,000, and also to pay the $1,000 principal, but that the plaintiffs refuse to accept the $1,000 and the interest accrued upon the same at 7 per cent. since the date of said note, as payment in full for said note and mortgage."

Other facts are found but, as they are not of controlling influence, they are not herein set out. Upon the facts found, the court stated as its conclusion of law "that the law is with the defendants." There was a judgment that the plaintiffs take nothing by their complaint, and that the defendants recover their costs, etc.

The complaint in this case proceeds upon the theory that the appellee David Glueck had failed to comply with his part of the said agreement whereby the said credit of $2,150 was placed upon said note, and that by reason of such failure and his failure thereafter to pay the interest on said note in November, 1921, the entire note became due, and that they are therefore entitled to maintain this suit. The complaint alleges that said Glueck, in consideration of said credit being given, promised that he would pay to the Cenek Company, for the benefit of appellants, and as a credit upon their said contract the sum of $2,150; but the complaint does not allege that any time was agreed upon or stipulated by the parties, as to when such payment should be made.

[1] The trial court, however, found the fact to be that Glueck promised the appellants that he "would secure a credit of $2,150 from the said Robert R. Cenek Company upon the contract price for the purchase of said real estate," if they would enter said credit upon said note, but the time when said

So long as this substituted agreement remained unbreached by the other party, the appellants certainly could have no right to repudiate it and insist upon the performance, by the other party of the original agreement. Authorities supra.

[4] As to the appellee Stanley, there is no finding that he was in any way in default as to his compliance with the terms of said note and mortgage, and, consequently, no right of foreclosure of said mortgage is shown as against him. We find no error on this record.

Judgment affirmed.

HEATON v. WILSON'S ESTATE.
(No. 12002.)

Feb. 18, 1925.)

credit was to be entered is not found. We then have the parties in this situation, name ly: The appellants have purchased certain property at and for the sum of $10,650, to be paid by appellants in installments, and the Cenek Company is to proceed with the construction of the building to be erected thereon; this is May 20, 1921, and the appellants have the note of Glueck for $3,150, due May 10, 1924; Glueck has been largely, if not entirely, instrumental in getting appellant to purchase this property; as his commission on this sale (presumably from the facts found) he is to have all of said sale price in excess of $8,500 ($2,150), less the costs of negotiating certain loans and mortgages. So it appears that his interest in this sale was practically the amount of the said credit so placed upon said note. His note to appellants was not yet due, but the credit of the (Appellate Court of. Indiana, Division No. 2. amount stated upon the contract between the appellants and said Cenek Company would be, so far as the appellants were concerned, the same as a payment in cash to said company; it would certainly be advantageous to them, and as their contract with the Cenek Company did not bear interest-at least it is not so found-it could not be of material difference to them, if they continue to carry out their said contract of purchase, when said sum was credited on their said contract, provided it was credited at any time before they had completed the payments to be made by them, aggregating the sum of $8,500. But Glueck's interest could only be finally and exactly determined after said house had been fully completed, and the cost of said loan and mortgage became known, and in the absence of a finding as to the time when said credit was to be placed upon said contract, we think it to be fairly inferable from all the facts found, that the parties did not contemplate that said credit should be at once procured and entered upon said building contract, but that the same should await the completion

of said house.

[2, 3] The contract for said credit between appellants and said Glueck was a valid one, and, so long as it remained unbroken, neither party had a right to repudiate itto set aside its terms. The question as to whether Glueck had broken this contract was one of fact for the trial court. It was the foundation fact so far as this suit was concerned, for, if there had been no such breach, this suit could not be maintained. There is no such finding in this case. As the record stands, we have an original contract for the payment of a definite sum of money at a time certain, modified by a subsequent contract, as to the amount of money to be paid thereon. This modification the parties had a right to make. Toledo, etc., R. Co. v. Levy, 127 Ind. 168, 26 N. E. 773; Ward v. Walton, 4 Ind. 75; Rhodes v. Thomas, 2 Ind. 638.

1. Executors and administrators 229-Claim
against estate held based on same liability as
prior claim and such as should be abated.

against estate of deceased stockholder, based
Claim by receiver of construction company
on such stockholder's receipt of bonds of trac-
tion company which were distributed pro rata
to stockholders of construction company, and
claim subsequently filed by receiver against
stockholder bound himself to pay his pro rata
same estate based on written contract whereby
share of mechanics' claims filed against the
traction company in consideration of distribu-
tion of the traction company's bonds involved
in first claim, held both predicated on same lia-
bility, though one pleaded a written contract
and such that latter claim should be abated.
2. Abatement and revival 8(1)-Test to de-
termine question whether action should be
abated on ground that another is pending,
stated.

Whether action is subject to be abated on ground that there is another action pending is determined by whether relief sought in second if rendered on merits in first could be pleaded in is same as in first, and by whether a judgment

bar in second.

Appeal from Circuit Court, Grant County; J. F. Charles, Judge.

In the matter of the estate of J. Wood Wilson, deceased. From a judgment sustaining the executor's plea in abatement to a claim filed by Owen N. Heaton, receiver of the Bluffton & Marion Construction Company, the receiver appeals. Judgment affirmed.

John A. Kersey, of Marion, and Eichhorn & Edris, of Bluffton, for appellant. Willard B. Gemmill, of Marion, and Shirley, Whitcomb & Dowden, of Indianapolis, for appellee.

MCMAHAN, J. On January 23, 1923, appellant filed a claim against the estate of J. Wood Wilson, alleging said estate was in

(146 N.E.)

been rendered, but that said claim was still pending and undisposed of; that appellant, by the claim so filed in 1917, seeks to recover an alleged indebtedness claimed to be due the receiver on account of the distribution of said bonds to the stockholders of the con

which is the same alleged indebtedness he seeks to recover by the claim filed in the instant case, and that the two claims are for the same indebtedness. The prayer is that this action abate.

debted to him as receiver of the Bluffton & was transferred to the issue docket for trial, Marion Construction Company, hereinafter was thereafter submitted to the court for designated as the construction company, in trial, the evidence heard, and the cause takthe sum of $2,000 on account of the distribu-en under advisement; that no judgment had tion of the property of said construction company among its stockholders, November 2, 1909, pursuant to a written agreement executed by the decedent and the construction company dated November 2, 1909, reciting that the Marion, Bluffton & Eastern Traction Company, hereinafter referred to as the trac-struction company in November, 1909, and tion company, had delivered to the construction company its first mortgage bonds in the sum of $728,000 and its capital stock in the sum of $850,000 for the purpose of complying with a contract theretofore made between the construction company and the traction company, whereby the former agreed to construct and equip a certain line of railroad for the traction company; that said capital stock and $640,000 of said bonds had been distributed by the construction company among its stockholders in proportion to the capital stock held by each of them; that, by virtue of an agreement between said companies, $80,000 of the bonds had been held and retained by the traction company until all mechanic liens against the traction company's property were satisfied and released, and it being the desire of the construction company that said $80,000 bonds be distributed among its stockholders, pending certain litigation, said construction company and certain named of its stockholders, including J. Wood Wilson, in consideration of such distribution, entered into an agreement reciting said facts, and that, in consideration of the distribution to them of said $80,000 bonds to the stockholders, the latter agreed to thereafter pay the construction company their pro rata share of any indebtedness which any creditor might establish against the construction company. This agreement was copied in the claim so filed and made a part thereof.

To this claim the executor of the will of J. Wood Wilson filed a plea in abatement alleging that in November, 1917, appellant filed his claim against said estate, alleging that appellee estate was indebted to him as receiver on account of the distribution of the assets of the construction company among its stockholders November 2, 1909; the assets so distributed being alleged to be $80,000 of the

To this plea in abatement appellant filed a demurrer for want of facts. The reasons why the plea in abatement was not sufficient, as set out in the memorandum filed with and in support of the demurrer, are: (1) That, under the claim in the former action, the facts alleged in the complaint in the instant case could not have been given in evidence; (2) that the former action, as shown by the plea, was in part for the recovery of money on account of the bonds distributed to the decedent by the construction company, while the claim in the instant case is upon an express contract in writing to pay to the construction company the money to meet the liabilities of the construction company.

The demurrer being overruled, a reply in denial was filed and the issues thus raised were submitted to the court for trial and resulted in a judgment for appellee that the action abate. Appellant's motion for a new trial being overruled he appeals.

[1] Appellant contends that the former claim which he filed was to enforce a stockholder's common-law liability as a stockholder and not on the specific contract set out in the present action. We cannot concur in the contention that the former claim was limited to a claim on account of the common-law liability of a stockholder.

It is clear that appellant, in the claim first filed, sought a recovery on account of the distribution by the construction company of the same bonds mentioned in the claim last filed. It was the distribution of the bonds that gave rise to the first as well as the last claim. The fact that the written contract was not made a part of the claim or com

bonds of the said traction company, of which plaint in the former action does not render

bonds J. Wood Wilson had received and converted to his own use bonds of the value of

$2,000, and that said estate was also indebted to appellant on account of unpaid stock subscription for the capital stock of said construction company, and that, because of said items of indebtedness, it was necessary that appellant as receiver recover said amount of indebtedness to enable him to pay outstanding debts of said construction company, a copy of said claim so filed in 1917 being set out in full. It also alleged that said claim

the plea in abatement subject to demurrer. As was said in Roy v. Scales, 76 Ind. App. 373, 132 N. E. 268:

"It is a well-established rule of law that a single cause of action cannot be split in order that separate suits may be brought for the various parties on what really constitutes but

one demand."

To the same effect, see Roby v. Eggers, 130 Ind. 415, 422, 29 N. E. 365.

It seems to us that the second claim substantially involves an issue involved in the

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