Opinion
No. 13,408.
Filed June 7, 1929. Rehearing denied September 14, 1929.
1. CONTRACTS — Matter not in Written Instrument — Intended to be Omitted. — That which does not appear in a written instrument involving matters in controversy between parties is presumed to have been purposely omitted. p. 682.
2. COMPROMISE AND SETTLEMENT — Contract of Settlement of Controversy Concerning Sale of Machinery — Notes for Purchase Price not Included — Finding Supported by Evidence. — Plaintiff purchased machinery from the defendant and executed a series of notes as a part of the purchase price. Subsequently, he became dissatisfied with the machinery, claimed that it would not do the work for which it was intended and complained to the defendant about the matter. A compromise agreement was prepared whereby the plaintiff sold the property back to the defendant for $2,440, with a payment of $100 in cash and $500 thirty days later, the balance evidenced by notes payable each month. No mention was made of the notes given by plaintiff as a part of the original purchase price and they were retained by the defendant. In a suit on the contract to recover the balance alleged to be due thereon, the defendant pleaded payment and setoff. There was evidence that the plaintiff consented to receive his own notes in payment for an equal portion of the amount due on the contract, and executed a receipt showing that fact. The court awarded the plaintiff judgment for $202, from which he appealed. Held, that a finding that the original notes of plaintiff were still in effect notwithstanding the written contract of settlement was supported by the evidence. p. 683.
From Lake Superior Court; Charles E. Greenwald, Judge.
Action by Homer S. Siler against Antonio Colosimo. From a judgment for plaintiff for an unsatisfactory amount, he appealed. Affirmed. By the court in banc.
Kliott Hurley and Gavit, Hall, Smith Gavit, Thomas J. Hurley, Frank N. Gavit and Albert H. Gavit, for appellant.
Homer E. Sackett, Wildermuth Force, Ora L. Wildermuth and Robert L. McMahan, for appellee.
The appellee in this action sold to the appellant a machine with which to manufacture cement blocks and the right to use the same in the city of Gary under a certain patent, which appellee had and owned. The consideration was $2,500, of which $1,000 was cash, and $1,500 was evidenced by fifteen notes of $100 each, signed by appellant and delivered to appellee.
It appears that the appellant became dissatisfied with his bargain and claimed that the machine was not practical and would not do the work for which it was intended, and complained to appellee about the matter, and as a result of their negotiations, did, on March 5, 1924, enter into a written contract in the words and figures following, to wit:
"Gary, Indiana, March 5, 1924.
"I hereby agree to sell and assign to Mr. Tony Colosimo all of the machinery, building, lease and other equipment located on the Michigan Central right of way, also my rights to the manufacture Colosimo Damp Proof building block in the city of Gary, Lake County, on the following conditions, $100 as a deposit, $700 in 30 days and balance 60 days or notes secured, payable at $50 per month and interest at the rate of 7%. I also agree to pay Mr. Pontius Heintz for lease in full to June 12, 1924. Said lease in included in this agreement. The purchase price of which is $2,440.00. Price of lease per year from Mr. Heintz is $75.00.
"Homer S. Siler "Tony Colosimo."
The appellee herein retained the original notes which he held against the appellant.
This action was brought by the appellant against the appellee on the last contract of sale of the property and patent back to the appellee, for the balance of $1,840 alleged to be due thereon.
The appellee filed a number of paragraphs of answer, one of which was a plea of payment and a set-off, which answer closed the issue upon which the case was tried.
It then became a question of fact whether the old notes held by the appellee were to be considered as canceled and held for naught in the new contract of sale back to appellee, or 1. whether they were considered as a binding and legal obligation in the hands of the appellee. The court evidently found that the notes were legal and binding and were not considered as a part of the last contract of sale. The notes are not mentioned in the written contract, and, according to the well-established rule of written instruments, that which is not in the instrument was intended to be left out.
The appellee testified that, after the contract was made, appellant came in for money, and appellee said, "Why, now here is the notes. I will begin to pay you with notes that you delivered, and he said, `All right' and I write a receipt, and Mr. Siler signed, and then Siler came back after a few days and he said the note was no good." The receipt referred to reads as follows and was admitted in evidence.
"April 12, 1924
"Received from Tony Colosimo, $1,400 to be applied on the cement plant and balance to be paid. Homer S. Siler."
The appellee introduced in evidence a number of what purported to be receipts for payments on the contract in question, from which the court held the appellee was entitled to credit on 2. the contract sufficient to leave a balance due appellant of $202.91, for which amount the court rendered judgment.
The evidence is sufficient to support the finding of the court.
Judgment affirmed.
McMahan, C.J., not participating.