67 Ind. 338 | Ind. | 1879
This was a suit by the appellant, against the appellees, as the joint makers of a promissory note, of which the following is a copy:
“$479.65. September 12th, 1868. Four months after date, we promise to pay to Velorious Butterfield or order, four hundred and seventy-nine 65-100 dollars, with interest at ten per cent, per annum ; value received, without any relief whatever from valuation or appraisement laws.
(Signed,) “ Samuel Trittipo.
“ Jacob M.Casteller.”
On this note there were the following endorsements:
“ Interest paid for one year.
“ Oct. 22d, 1870. Received on the within, $100.00.
“ May 15th, 1872. Received forty-seven dollars and twenty7-five cents, as interest to date.
“ March 17th, 1873. Received fifty- dollars.”
The appellee Samuel Trittipo was called and made default. The appellee Jacob M. Casteller separately answered in three paragraphs, to each of which paragraphs the appellant’s demurrer for the want of sufficient facts was overruled by the court, and to this ruling the appellant excepted. To each of said paragraphs of answer the appellant then replied by a general denial.
The cause was tried by the court, and a finding was made for the appellee Jacob M. Casteller, upon the issues joined between him and the appellant. The appellant’s motion for a new trial having been overruled, and his exception entered to this decision, the court rendered judgment upon its finding, in favor of the appellee Casteller, from which judgment this appeal is now here prosecuted.
The following decisions of the circuit court, in this ease, have been assigned by the appellant, as errors, in this court:
1. In overruling his demurrers to the first, second and
2. In overruling his motion for a new trial.
1. In the first paragraph of his answer, the appellee Casteller said that he signed the note m suit as surety for his co-appellee, Samuel Trittipo, as the appellant well knew at the time he received said note ; that afterward, at the maturity of said note, the appellant agreed with the appellee Trittipo, in consideration that said Trittipo would pay the appellant the interest then due on said note and interest thereon in advance for one year thence next ensuing, at the rate of ten per cent, per annum, that he, the appellant, would extend the time for the payment of said note for the said period of one year next after the maturity of the note: and the said Casteller averred that, for that purpose, the said Trittipo did pay the appellant the interest then due on said note, and the further sum of forty-seven dollars and ninety-six and a half cents in addition thereto, and the appellant then agreed with said Trittipo to extend and did extend the time for the payment of said note, for the said period of one year thence next ensuing, without the knowledge or consent of the appellee Casteller.
■ The second paragraph of the answer was substantially the same as the first paragraph, except in this, that it was alleged in said second paragraph, that, at the maturity of the note in suit, the plaintiff, in consideration of the payment to him by said Trittipo of the interest then due on the note, and interest in advance thereon for twelve months thence next ensuing at the rate of twelve per cent, per annum, agreed with said Trittipo to extend and did extend the time for the payment of said • note for the said term of twelve months next after the maturity of said note.
In the third paragraph of said answer, the said Casteller alleged, in substance, that he signed the note in suit as the
In their argument of this cause in this court, the appellant’s counsel have expressly waived the consideration of the alleged error of the court, in overruling his demurrers to the several paragraphs of the separate answer of the appellee Jacob M. Casteller, and have practically conceded that the facts alleged in each of the said paragraphs were sufficient, if sustained by the evidence, to discharge said Casteller from liability on the note in suit.
2. The only remaining error assigned by the appellant in this court is the decision of the court below in overruling his motion for a new trial. In this motion, the following causes were assigned for such new trial:
“1. The finding of the court is contrary to law;
“2. The finding of the court is not .sustained by sufficient evidence ”
Practically, therefore, the only question presented for our decision by the second alleged error in this case is this: Is- there any sufficient evidence, in the record, which tends to sustain the material allegations of either paragraph of the separate answer of the appellee Jacob M. Casteller ? From our examination of the evidence, which is properly in the record, it seems to us that this question must be answered in the negative. While this court may not properly weigh evidence, nor attempt to determine its preponderance either for or against the finding below, it is still the duty of this court, as we understand our duty, to carefully examine the evidence, when the point is made, with the view of ascertaining whether or not' there has been a failure of evidence on any material question. When the record discloses such a failure of evidence, it is as much the duty of this court to reverse the judgment below, on that ground, as for any other error.
It would seem to be settled law in this State, that an agreement between the payee or holder of a promissory note and the principal therein, for an extension of the time of payment thereof for a fixed and definite period, made without the knowledge or consent of the surety in such note, and with knowledge of such suretyshiy, and founded upon a new consideration, will discharge the surety from any liability on such note. Huff v. Cole, 45
It will be seen from our summary of the several paragraphs of the separate answer of the appellee Casteller, in this case, that, in the first and second paragraphs of his answer, he relied upon the payment of interest in advance, for a fixed and certain time, by the principal, Trittipo, to the appellant, the payee and holder of the note, as the foundation of the .defence. In each of the first two paragraphs of answer, the appellee Casteller stated an express agreement between said Trittipo and.the appellant, for an extension of the time of payment of the note for a fixed and certain period, founded upon the payment of interest in advance for such period of time.
There is certainly no evidence in the record which tends to show that there was ever any such agreement entered into between the appellant and said Trittipo, for any such extension of the time of payment of the note in suit. In his brief of this cause in this court, Casteller’s learned counsel does not claim nor rely upon any such agreement for such an extension. The evidence utterly failed, we think, to show that Trittipo ever paid the appellant any interest in advance, on the note in suit. The appellant, as a witness in the case, testified positively and unequivocally that there never had been any interest in advance paid on the note; and his evidence ón this point was not contradicted by the evidence of any other witness. On the point under consideration, the whole case for the appellee Casteller rests upon an inference attempted to be drawn from the credits endorsed on the note in suit. We have set out these credits in this opinion, and it will be seen therefrom, that one of the credits there endorsed, reads as follows : “ May 15th, 1872. Received forty-seven
It seems clear to us, therefore, that the evidence adduced upon the trial of this case entirely failed to sustain the allegations of either the first or second paragraphs of the separate answer of the appellee Jacob M. Casteller.
In the third paragraph of his answer, as we have seen, the appellee Casteller alleged, in substance, that, on the
In conclusion, therefore, we hold that the court clearly erred in overruling the appellant’s motion for a new trial of this cause.
The judgment is reversed, at the appellees’ costs, and the cause is remanded for a new trial and further proceedings in accordance with this opinion.