Beckner v. Carey, 44 Ind. 89

Beckner v. Carey

44 Ind. 89 | Ind. | 1873

Osborn, J.

The appellee commenced an action upon two promissory notes of two thousand dollars each, executed by the appellant to James Mahan, and to enforce a vendor’s lien for the purchase-money for real estate.

The action was by the appellee as executor of the last will *90and testament of James Mahan, deceased. There was a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled, and an exception taken. Issues of fact were formed, which were tried by the court, resulting in a finding for the appellee for four thousand three hundred and thirty-three dollars and thirty-three cents, and over a motion for a new trial, judgment was rendered for that amount, and for a sale of the real estate for which the notes were given.

The complaint states, with sufficient certainty, the death of Mahan, and that the appellee had been appointed his executor. The demurrer was correctly overruled.

It is insisted that the finding was for too much. That depends entirely upon whether interest is allowed at six or ten per cent, for ten months.

The evidence which is set out in a bill of exceptions shows that the interest was all paid to December 25 th, 1869. The following contract is endorsed upon each of the notes: "I do agree to pay (ten) 10 per cent, interest on the within note, from the 25th of December, 1869, until paid.

“Jacob Beckner.”

Sometime in the spring of 1870, he executed his note for four hundred dollars for the interest for one year, from December 25th, 1869, to December 23th, 1870. He admitted on the trial that there was due on that note one hundred dollars. The action was tried on the 26th day of October, 1871. The court allowed interest at ten per cent, for ten months, three hundred and thirty-three dollars and thirty-three cents. It is contended by the appellant that the agreement to pay ten per cent, was without consideration. The agreement was in consideration of extending time for the payment of the notes. That was extended for one year and nine months before bringing this action. That was a sufficient consideration for the promise.

In Harden v. Wolf, 2 Ind. 31, the agreement was as follows: "November 29th, 1841. It is agreed that the within is to bear at the rate of ten per cent.,” signed by the makers *91of the note. It was held that the contract made at the date of the note to pay the samé with six per cent, interest was merged in the new agreement, made at the time of the endorsement, and that the note with the endorsement imported an agreement to pay the sum therein specified, with six per cent, interest to the date of the endorsement, and ten thenceforward, until it should be paid; that the agreement amounted to the same thing in effect, as if the note had been cancelled, and a new note had been executed, bearing ten per cent, interest. The ruling in that case is decisive of this.

The judgment of the said Rush Circuit Court is affirmed, with two per cent, damages.