64 Ind. 431 | Ind. | 1878
This was a suit by the appellee, against the appellant and one Jacob B. Day, as defendants, for the recovery of the amount alleged to be due on two promissory notes.
The complaint was in two paragraphs, each counting on a separate note, executed by said Jacob B. Day and the appellant, and payable to the appellee.
The defendant Day separately answered, setting up matter of set-off as a partial defence to the action ; to which separate answer the appellee replied by a general denial. The appellant separately answered in a single paragraph, tp which the appellee demurred, upon the ground that it did not state facts sufficient to constitute a defence to his action. This demurrer was sustained by the court, and to this decision the appellant excepted, and refused to answer further.
The cause was tried by the court, and a finding made for the appellee, against both defendants ; and, “ by agreement of parties,” it was further found by the court that the appellant was surety on the notes in suit.
Judgment was then rendered by the court upon and in accordance with its finding, from which said judgment this appeal is now here prosecuted.
In this court, the appellant has assigned the following alleged errors:
1. The circuit court erred in sustaining the appellee’sdemurrer to the appellant’s answer; and,
2. The circuit court erred in rendering judgment against the appellant and in favor of the appellee.
Upon these alleged errors, the only question for our decision is this : Were the facts stated in the appellant’s an
In his answer, the appellant admitted the execution of the notes in suit, but he said that he signed the same as the surety for his codefendant, Day, who was the principal in said notes, and in no other manner whatever, which was well known to the appellee at the time, and that he. had no other interest in said notes than as the security of said Day; that, on the 20th day of September, 1875, the appellee proposed to the defendant Day, without the appellant’s knowledge or consent, that he, the appellee, would extend the time of payment of the notes sued on, for a period of ninety days from the said 20th day of September, 1875, if he, the said Day, would agree and promise to pay the appellee another note, which the appellee held against said Day, which would not fall due until the 25th day of December, 1875, and would not be due in ninety days from said 20th day of September, 1875, which proposition was accepted by said Day, and which said agreement' was entered into then and there by the appellee and said Day, whereby it was agreed, in consideration of the promise of the payment of the note not due at the same time of the payment of the notes in suit, that the time for the .payment of the notes sued on should be extended for a period of ninety days from the 20th day of September, 1875, and that, in pursuance of said agreement, the time, of the payment of the notes in suit was extended for a> period of ninety days, which contract and agreement were made and entered into without the appellant’s knowledge or consent. Wherefore, and by reason of the facts; stated,. the appellant said that he was not liable on said n©tes, and: that he was released as surety thereon, and He* prayed judgment for costs, and for all other proper relief.'
It is very clear, we think, that this answer stated, fácta
The court erred, we think, in sustaining the appellee’s demurrer to the appellant’s answer in this case.
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to overrule the demurrer to the appellant’s answer, and for further proceedings in accordance with.this opinion.