193 Ind. 386 | Ind. | 1923
Appellee Ella O’Dell filed her complaint in the Cass Circuit Court, against appellees, Ora C. O’Dell, Lillie O’Dell and appellant, Claude D. Beck, to recover $950 on a certain promissory note executed by said defendants to plaintiff in the principal sum of $800 dated October 20, 1905, due one year after date with six per cent, interest, and attorneys’ fees. It appears that the interest had been paid up to October 20, 1912.
The complaint was in the usual form, alleging that the note was due and unpaid and that it provided for attorneys’ fees, closing with a demand for judgment for the amount of the principal and interest due, together with $150 attorneys’ fees. To this complaint, all of said defendants filed a joint and several answer in four paragraphs: First, general denial; second, payment; third, no consideration; and fourth, the alleged acceptance by plaintiff from defendants, appellees, Ora C. O’Dell and Lillie O’Dell of a new note of $900, covering the principal and accrued interest of the note sued thereon and in payment thereof. A reply was filed to the second, third and fourth paragraphs. All of the defendants filed a fifth paragraph of answer, to which a demurrer was sustained. The appellant, Claude D. Beck, also filed a separate sixth paragraph of answer in which, he alleged that appellee Ella O’Dell had, on August 27, 1912, entered into a written contract with appellees, Ora C. O’Dell and Lillie O’Dell, principals on the note, by which the time of the payment of the note sued upon was extended for a valuable consideration and without his consent and that he was surety only on
The defendant, Claude D. Beck, filed an eighth paragraph of separate answer in which he alleges that he executed the note as surety only for defendants, O. C. O’Dell and Lillie O’Dell. That hé received no consideration for the execution of said note. That said note represents money loaned to said defendants, Ora C. O’Dell and Lillie O’Dell by plaintiff. That at the time of the execution of said note, the plaintiff knew that he was surety only. He further says that the principals paid a portion of interest on said note but did not pay the interest in full and had paid no part of the principal. . That in August, 1915, after said note became due, said defendants, Ora C. O’Dell and Lillie O’Dell entered into negotiations with the plaintiff for the extension of the time of payment on said note sued on. That it was agreed between plaintiff herein.and said defendants Ora C. O’Dell and Lillie O’Dell that the plaintiff would accept a-new note in payment of the noté sued on herein and accumulated interest thereon, which note should be in the sum of $900, dated - October 1, 1915, to be paid on or before three years after that date, with interest at six per cent, per annum from date.
A demurrer severally interposed to the sixth, seventh, and eighth paragraphs of the separate, answer of appellant was sustained as to the sixth and seventh and exceptions taken. The demurrer to the eighth paragraph of answer was overruled and appellee Ella O’Dell filed a reply in general denial. Appellant Claude D. Beck then filed a cross complaint against all of the appellees, alleging that he executed the note sued on as surety only. The appellees filed answer in general denial to this cross-complaint. The case was then at issue on the complaint, the first, second, third, and fourth paragraphs of several answers and replies thereto, and the eighth paragraph of separate answer of appellant and reply thereto and upon appellant’s cross-complaint and answer in general denial thereto. The cause was submitted to a jury upon the issues so formed. At the conclusion of the evidence appellee Ella O’Dell moved the court to direct the jury to return a verdict in her favor, which motion was sustained by the court, to which appellant and his codefendants separately and severally excepted. The court gave the following instruction, requested by the plaintiff, appellee Ella O’Dell: Instruction No. 1: “Gentlemen of the jury, you are instructed to return a verdict in this case in favor of plaintiff against the defendants, Ora C. O’Dell, Lillie O’Dell and Claude D. Beck and assess the amount of her recovery at the full amount of the principal and interest due on the note and the attorneys’ fees proven by the evidence, which amounts to $1063.60, principal and interest on the note sued on and $213 attorneys’
Upon the giving of said peremptory instruction, the jury returned a verdict in favor of appellee Ella O’Dell against all the defendants for the amount specified in said instruction, which verdict is as follows: “We, the jury, find for the plaintiff as against the defendants, Ora C. O’Dell, Lillie O’Dell, and Claude D. Beck, and assess her recovery at $1,063, principal and interest of the note sued on and the further sum of $213 attorneys’ fees.”
The defendants filed their motion for a venire de novo which, omitting the caption, is as follows: “Defendants, Ora C. O’Dell, Lillie O’Dell and Claude D. Beck hereby separately and severally move the court for a venire de novo in said cause on the following grounds, to wit: The verdict of the jury does not cover all the issues of the case, the verdict of the jury does not cover or include the issue of suretyship formed by the cross-complaint of Claude D. Beck, and answer thereto.”
Thereafter on the same day appellant filed his motion for a new trial. The court overruled the motion for a venire de novo, to which ruling,' the defendants separately and severally excepted,' and also overruled the motion for a new trial, to which ruling appellant excepted. The court then rendered judgment on the verdict as follows: “It is, therefore, ordered, adjudged and decreed that the plaintiff have and recover of and from the defendants, Ora C. O’Dell, Lillie O’Dell and Claude D. Beck, upon the note sued on the sum of $1299.36. * * *”
This appeal is prosecuted from said judgment. The errors relied upon for reversal are: the sustaining of the demurrer to appellant’s sixth paragraph of separate answer; the sustaining of the demurrer to appellant’s seventh paragraph of separate answer; overruling
The evidence discloses certain negotiations concerning a new note and the giving of the new note in payment of. the note sued on, and it is the contention of appellant that whether or not these negotiations amounted to an agreement for extension of time for the payment of the note sued on was a question which should have been submitted to the jury for decision. The appellant also claims that the evidence as to the amount of attorneys’ fees properly recoverable on the note sued on was conflicting and that the court, in directing the jury to include in their verdict $213 for attorneys’ fees, erred.
We will first consider the demurrers sustained to appellant’s sixth and seventh paragraphs of separate am swer. The appellant’s sixth paragraph of separate answer is based on a written agreement which is set out in said answer, and it is alleged that said contract extended the time for the payment of the note sued on; that it was based upon a good and valuable consideration; that the agreement was executed by the defendants Ora C. O’Dell and Lillie O’Dell and C. E. O’Dell; that the said C. E. O’Dell wag the husband of plaintiff herein and transacted all of her business; that the plaintiff had full knowledge at the time of the execution of said contract that he was surety only on said note, and that he did not learn of the execution of said agreement until the beginning of this
In the case of Holmes v. Boyd (1883), 90 Ind. 332, the court said, “a contract for forbearance in suing upon a promissory note, or other similar instrument, in writing, after it has become a binding obligation upon the makers, must be upon some new consideration. This rule applies not only to cases in which the rights of sureties are affected, but extends to all-contracts of that character. A distinct and adequate consideration is an essential requisite in all contracts of forbearance to sue.”
In Smith v. Boruff (1881), 75 Ind. 413, it is held that where a party is legally bound to do a thing, as to enter satisfaction of a mortgage when payment has been made, a promise made to induce him to do it is without consideration. See, also, Reynolds v. Nugent (1865), 25 Ind. 328.
In Ford v. Garner (1860), 15 Ind. 298, it is held that, where one was already liable to pay the defendants, her promise to pay it out of a particular fund imposed no additional obligation upon her. It was not error to sustain a demurrer to this paragraph of answer.
The seventh paragraph of separate answer of appellant sets up the same contract but alleges that said written contract is incomplete and that concurrent therewith, as a part of said contract, and supplemental. thereto, plaintiff and said defendants Ora C. O’Dell and Lillie O’Dell entered into an oral con
In Alexander v. Capitol Lumber Co. (1914), 181 Ind. 527, it is held that an extension of time which will release a surety must be for a definite period for a valuable consideration and granted without the consent of the surety by the holder with knowledge of the suretyship. It is further held, in said case, that while a written contract should furnish the medium of its own interpretation when unambiguous, where it is doubtful or ambiguous, the circumstances, situation of the parties, conditions under which it was entered into may be shown by parol to enable the court to interpret it, but not for the purpose of contradicting, extending or enlarging its terms. The demurrer to this paragraph of answer was correctly sustained.
The motion of appellant and his codefendants for a venire de novo is upon the grounds that the verdict of the jury does not cover all the issues of the case, in that the verdict of the jury does not cover or include’the issue of suretyship formed
This statute gave to the appellant the right to have the matter determined at the time of the trial of the main cause or at any time before or after the trial or at a subsequent term. The existence of the judgment in favor of the plaintiff and against the defendants on the note in suit did not in any way interfere with appellant’s right to determine the question of suretyship. In support of his position, appellant cites Bosseker v. Cramer (1862), 18 Ind. 44, where the court quotes from 2 Tidd’s Practice, 922, as follows: “ ‘A venire de novo is granted when the verdict, whether general or special, is imperfect by reason of some uncertainty or ambiguity, or by finding less than the whole matter put in issue, or by not assessing damages.’ ” He also refers us to Maxwell v. Wright (1903), 160 Ind. 515. These authorities are not applicable to the instant case, because, in the instant case, the verdict covers all issues between the plaintiff and the defendants in the cause. The plea of suretyship put in by appellant does not affect the issue between plaintiff and defendants on the note. •
In Smith v. Muncie Nat. Bank (1867), 29 Ind. 158, it is held that the fact that a defendant is surety upon
In Joyce v. Whitney (1877), 57 Ind. 550, it is held that the complaint of one defendant against another to establish the alleged suretyship of the former is not a mere cross-complaint but a new and original proceeding which cannot be tried upon the issue of the plaintiff. See, also, Knopf v. Morel (1887), 111 Ind. 570; Houston v. Bruner (1872), 39 Ind. 376; Dodge v. Dunham (1872), 41 Ind. 186; Baldwin v. Webster (1879), 68 Ind. 133. The trial court did not err in overruling the motion for a venire de novo.
The next question arises upon the giving of a peremptory instruction to the jury to find for the plaintiff.
An instruction to return a verdict in favor of one of the parties to an action can only be justified when there is no evidence which would sustain a different verdict. Weis v. City of Madison (1881), 75 Ind. 241, 39 Am. Rep. 135; Purcell v. English (1882), 86 Ind. 34, 44 Am. Rep. 255; Overton v. Indiana, etc., R. Co. (1891), 1 Ind. App. 436; Hodge v. Farmers’ Bank (1893), 7 Ind. App. 94; Jackson, Rec., v. Mauck (1920), 189 Ind. 262, and cases there cited; Harbison v. Boyd (1911), 177 Ind. 267; Wolf v. McMillan (1889), 117 Ind. 587.
In this case, the issue was made upon the complaint and the first, second, third and fourth paragraphs of answer of the defendants and the eighth paragraph of separate-answer of the appellant. The first paragraph of answer was a general denial. The plaintiff introduced the note in suit and introduced some evidence on the amount of attorney’s fees. No evidence was introduced by the defendants to sustain their second and third paragraphs of answer. Their
We find no evidence in the record sustaining the affirmative allegations of the answers of the defendants and of the separate answer of appellant.
The general denial to the complaint raises the question of the amount of a reasonable attorney’s fee. The evidence as to the amount of such fee was conflicting. The appellant has a right to have it submitted to the jury, and the refusal of the court to do so was error. However, it is conceded by appellant that the evidence is sufficient to sustain a finding that the attorney’s services were worth $100. The court directed the jury to return a verdict for $213, attorney’s fees. If appellee will enter a remittitur of $113, of the amount allowed as attorney’s fees within 30 days from this date, as of the date of the judgment, in the court below, and procure the same to be certified to this court, the judgment will be affirmed at his costs, otherwise it will be reversed, with instructions to sustain appellant’s motion for a new trial.