Brush v. Raney

34 Ind. 416 | Ind. | 1870

Downey, J.

This action was commenced by the appellee against the appellant on a promissory note, executed by the latter and one Allen, deceased, to the former, the defendant styling himself “ collateral security.”

Answer, first, the general denia,l; second, payment before suit brought; third, that the defendant is only “collateral” security on the note, that the estate of Allen is solvent, that there is one thousand dollars of personal and real estate in Ripley county, and was at the time of commencing this action, and that by contract with the plaintiff, for a valuable consideration, he was to pay the same only in case it could not be made off Allen, and asks that the property of Allen may be first exhausted after the question of suretyship is tried; fourth, that he is only collateral security on the note, that the plaintiff accepted the note with the full understanding and agreement that he was to look to defendant, Brush, for his pay only in case the money could not be made off the principal, and that the heirs of Allen all live in Ripley county and have for five years, and that Allen has unincumbered personal and real property of the value of one thousand dollars, and that his estate is solvent. Wherefore, the defendant asks that the plaintiff be required to answer as to said, question of suretyship, and if the facts as stated be found to. be true, that the court will compel the plaintiff to exhaust the property of the principal before he is compelled to pay the same.

Reply to the second paragraph of the answer. Demurrer' to the third and fourth. Demurrers sustained, and exception taken. The defendant then withdrew the first and second paragraphs of his answer, and there was final judgment rendered for the plaintiff

The errors assigned are the sustaining of the demurrers, to the third and fourth paragraphs of the answer, and it is. insisted in argument that the complaint is bad.

The third paragraph does not state whether the contract referred to was made at the date of the note, or subsequently. If it was made at the date of the note, it cannot be sustained,, because it violates the well known rule that parol evidence cannot be admitted to vary or contradict a written instrument.

If it is to be understood that it was made subsequently to the date of the note, we think it cannot be sustained, because it does not set out any consideration for the agreement. It is true that it says it was for a valuable consideration. But it is the province of the court, and not of the pleader, to-decide whether the consideration was a valuable one or not. The facts with reference to the consideration should have been set out. Robinson v. Barbour, 5 Blackf. 468.

The fourth paragraph is evidently objectionable, because it sets up a contemporaneous parol agreement which materially changes the terms of the note.

B. P. Ferris, and FI. T. Lipperd, for appellant.

Neither of these paragraphs' of the answer can be sustained under the statute which enables sureties to have an order of the court that the execution shall be first levied on the property of principal. That statute applies only where an action is brought' against two or more defendants, &c. 2 G. & H. 308, sec 674.

As the promissory note on which the suit is brought is not dated, and the complaint does not, in terms, allege, that .it was due when the action was brought, it is urged that the complaint is bad. But the complaint, alleges that the note was .made on the first day of August, 1868. It had seven months to run. The suit was commenced on the second day of March, 1869. The complaint thus sufficiently shows that the note was due when the suit was commenced.

The judgment is affirmed, with ten per cent, damages and costs.