Lamb v. Thieme

367 N.E.2d 602 (1977)

William J. LAMB, Defendant-Appellant, v. John F. THIEME, Plaintiff-Appellee.

No. 2-475A99.

Court of Appeals of Indiana, First District.

September 20, 1977.

Stanton Babcock, Stuart, Branigin, Ricks & Schilling, Lafayette, for defendant-appellant.

Gregory J. Donat, Heide, Gambs & Mucker, Lafayette, for plaintiff-appellee.

*603 LOWDERMILK, Judge:

This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.

Defendant-appellant, William J. Lamb (Lamb), appeals from the judgment of the trial court which awarded plaintiff-appellee, John F. Thieme (Thieme), 90 shares of stock of Lafayette Beverage Distributor, Inc., raising the following issues for our review:

1. Whether the judgment is supported by sufficient evidence. 2. Whether the judgment is contrary to law. 3. Whether Thieme is bound by a judicial admission made in his complaint.

The facts necessary for our disposition of this appeal are as follows: On January 1, 1963, Thieme, who was president and general sales manager of Lafayette Beverage, Inc., exercised a stock option to purchase 120 shares of the company's stock at $100 per share. To pay for this stock, Thieme executed a promissory note payable to the order of Lamb on or before December 1, 1968, without interest, and with interest of 8% per annum after maturity. Thieme pledged these 120 shares of stock as collateral for his debt. Lamb, at this time, owned the other 240 shares of the company's stock.

Between January 1, 1963, and March 21, 1973, when this dispute arose, Thieme had paid none of the principal or interest due on the note, and Lamb had made no effort to collect on the note.

Early in March, 1973, Lamb began considering how to divest himself of his stock in Lafayette Beverage to satisfy an order of the Alcoholic Beverage Commission.

On March 21, 1973, Thieme, pursuant to Lamb's request, assigned 30 of his shares of stock to Lamb. Lamb apparently was planning to divest himself of these 30 shares to his son to comply with the order of the Alcoholic Beverage Commission. Thereafter, on May 8, 1973, Lamb presented Thieme a note for $125,000 to be paid over the next 20 years. This note represented the value of Thieme's remaining 90 shares of stock which was among the original 120 shares of stock he had pledged as security for his $12,000 note upon the exercise of his stock option.

I.

Thieme contends that when he assigned the 30 shares of stock to Lamb on March 21, 1973, his debt owing to Lamb was thereby discharged, and he thereby became the owner of the remaining 90 shares of stock free from any further obligation to pay for them. The trial court agreed with Thieme. Lamb contends that in order for the judgment of the trial court to withstand appellate scrutiny, it is necessary for this court to find that Thieme's assignment of the 30 shares of stock to Lamb amounted to a payment of Thieme's debt or an accord and satisfaction thereof. We agree with Lamb that these are the only two plausible theories upon which the trial court's judgment can be sustained.

To discharge an obligation by payment connotes satisfying the obligation according to its express terms or equivalent. Usually an obligation is satisfied by the debtor tendering to the creditor money in an amount equivalent to the debt. Egbert v. Egbert (1956), 235 Ind. 405, 132 N.E.2d 910. However, money is not the only medium of payment with which a debt can be satisfied. Legal payment can be made in any medium which the party obligated offers, and the party to whom payment is due, accepts as payment. Baum v. Nord (1928), 88 Ind. App. 674, 164 N.E. 294. Therefore, in order for the judgment of the trial court to be affirmed on a theory of payment, it is necessary that there be sufficient evidence in the record that Lamb intended to accept the 30 shares of stock assigned to him by Thieme in discharge of Thieme's debt.

It is the opinion of this court that the judgment of the trial court awarding Thieme 90 shares of the stock of Lafayette Beverage Company is not clearly erroneous. Ind. Rules of Procedure, Trial Rule 52(A); Citizens Gas & Coke Utility v. Wells (1971), 150 Ind. App. 78, 275 N.E.2d 323.

*604 The evidence and reasonable inferences therefrom that tend to support the trial court's judgment are as follows: Thieme testified that it was his understanding of the meeting conducted on March 21, 1973, that when he transferred the 30 shares of stock to Lamb that he would then become the owner, without further obligation, of the remaining 90 shares of stock. It appears from the testimony, although somewhat confusing, that the value of the 30 shares of stock Thieme transferred to Lamb was greater than Thieme's debt.

Thieme's testimony was supported by certain documentary evidence. On March 22, 1973, Lamb's attorney sent a letter to the Alcoholic Beverage Commission which, in pertinent part, described the stock ownership of Lafayette Beverage Company as follows:

"* * * ... . Accordingly, the 360 shares of common stock of Lafayette Beverage Distributor, Inc. presently issued and outstanding are held as follows:

  Stockholder           No. of Shares
  James E. Lamb              270
  John F. Thieme              90

* * *"

On March 27, 1973, James Lamb, appellant's son, sent a letter to six breweries which described Thieme as the owner of 90 shares of the company's stock as of April 1, 1973.

On May 2, 1973, Lamb sent a letter to a former employee, which provided in pertinent part, as follows:

"* * * Enclosed you will find correspondence from the Indiana Alcoholic Beverage Commission as to why I am no longer major stock holder of Lafayette Beverage Dist. The majority stock of Lafayette Beverage has been sold to James E. Lamb and John Thieme still remains the minority stockholder. * * *"

We are not oblivious to the fact that there was evidence presented to the trial court from which it could have been concluded that Lamb did not intend for Thieme to become the unencumbered owner of the 90 shares of disputed stock. However, it is axiomatic that on appeal this court will neither weigh the evidence nor attempt to judge the credibility of witnesses.

There being some evidence of probative value from which the trial court could have reasonably concluded that Lamb intended to accept Thieme's transfer of the 30 shares of stock as payment and discharge of his debt, it is the opinion of this court that the judgment of the trial court is supported by sufficient evidence and is not clearly erroneous.

Having determined that the judgment of the trial court can reasonably be supported on a theory of payment and discharge, it will be unnecessary for this court to determine if the trial court's judgment can be sustained on the additional theory of accord and satisfaction.

II.

Lamb's contention that the judgment of the trial court is contrary to law is predicated upon his belief that the trial court's judgment cannot be affirmed on a theory of payment and discharge. This court has heretofore decided that it can, and we shall not dwell further on this issue.

III.

Lamb contends that Thieme's averments in his complaint that he was the owner of 120 shares of stock of Lafayette Beverage Company was a judicial admission which precluded Thieme from arguing at trial that when he transferred 30 of his shares of stock to Lamb he became the unencumbered owner of the remaining 90 shares. Lamb contends that this judicial admission demonstrates there was no accord and satisfaction.

Lamb's answer denied Thieme owned 120 shares of stock of the Lafayette *605 Beverage Company. Therefore, the number of shares, if any, to which Thieme was entitled was put in issue. As said by our Supreme Court in the case of Brown v. Grzeskowiak (1951), 230 Ind. 110, at p. 125, 101 N.E.2d 639, at p. 645:

"... Moreover, a party cannot take advantage of an admission in the pleading of his adversary where he has denied the truth of the allegation and joined issue upon it, ... even though the denial be an indirect one... ." (Citations omitted)

Judgment affirmed.

ROBERTSON, C.J., and BUCHANAN, P.J., by designation, concur.