68 Ind. 436 | Ind. | 1879
The complaint of the appellee, administrator of the estate of Manly Richards, against the appellants, avers the following facts, pleaded in due form :
“ That, on the 10th day of August, 1874, Thomas M. Carter and Wesley S. Carter made their promissory note, payable to Manly Richards twelve months after date, for two hundred and fifty dollars, without relief from valuation or appraisement laws, with interest at ten per cent. till paid; that, on the - day of September, 1875* Thomas M. Carter sold and conveyed to Joseph J. Cai’ter and Thomas E. Carter certain real estate, in consideration of which Joseph J. and Thomas E. agreed with Thomas M. Carter to pay all the indebtedness of Thomas M.,a part- of which was the said note, which was given by the makers as- a part of the unpaid pui’chase-money for certain described lands sold and conveyed by the payee to the makers, Avho sold and conveyed the same to John R. Bastón* who at t-he ti-me had full knowledge of the note, and that*438 it was given in part consideration for said lands; that one thousand dollars due from Bastón to Thomas M. and Wesley S. still remains unpaid; which real estate Bastón still owns; and that Thomas M. and Wesley S. have no property’subject to execution.”
Prayer for judgment against Thomas M., Wesley S., Joseph J. and Thomas E. Cartel’, for three hundred dollars, balance due on the note; that it he declared a lien on the land, etc.
There was a second paragraph of complaint, which was subsequently dismissed, leaving the above first paragraph the only complaint in the record. All the defendants except Wesley S. Carter demurred jointly to the complaint, for want of facts. Joseph J. Carter demurred separately to the complaint, for want of facts as to him. These demurrers were overruled.
As no question is presented on the several answers and replies, we do not state them. Thomas E. Carter died during the pendency of the suit, and Joseph J. Carter was appointed the administrator of his estate, and aif such was admitted as a party defendant.
Trial by jury; verdict against Thomas M. Carter and Joseph J. Carter, who moved for a new trial, which was overruled. Judgment on the verdict, and appeal.
The first five assignments of error in this court question the sufficiency of the complaint, and may all be considered together.
The argument made against the complaint, on behalf of the defendants jointly, is, that it does not contain facts sufficient to constitute a cause of action against them all jointly. The joint demurrer does not reach this question : for, if it contain a good cause of action against any one ot the joint defendants, it should be overruled. There can he no doubt that it contains a good cause of action against the makers of the note, and, therefore, it was properly over’
1. It is contended by appellant that Joseph J. Carter, whose testimony was rejected by the court, was a competent witness on his own behalf as to the contract between him and Thomas M. Carter. It does not appear to us that the court erred in rejecting the testimony of Joseph J. Carter. He was a party defendant in person and as administrator of the estate of Thomas E. Carter. The plaintiff was the administrator of the estate of Manly Richards. The issue was between the estate of Manly Richards as plaintiff", and the estate of Thomas E. Carter and Joseph J. Carter, personally, as defendants. No judgment could be rendered in the ease, except either for or against the estate of Manly Richards, or for or against the estate of Thomas E. Carter. Joseph J. Carter was, therefore, an incompetent witness on two grounds ; and as he was not required to testify by the opposite party, nor by the court trying the cause, the ruling below is correct. Malady v. McEnary, 30 Ind. 273; Peacock v. Albin, 39 Ind. 25; Wil
2. The admission of the testimony of Mary J. Carter, as rebutting evidence, is complained of by the appellants, on the ground that, if admissible at all, it should have been introduced in chief; but the bill of exceptions shows that the testimony of Mary J. Carter was in response to the testimony of Rebecca Carter, touching an alleged release, called out by the -apjDellant in his defence. This being the case, the testimony was properly admitted. Besides, "William Carter was allowed to testify in rebuttal, without objection, to the same conversation testified to by Mary J. in rebuttal. There is no error in these rulings. It should be remarked, too, that it is within the sound discretion of the court to admit evidence to sustain the action in chief, after the defendant has closed his defence, -when the defendant still has an opportunity to contradict it; and such discretion would have to be greatly strained before it would become ground to reverse, the judgment.
3. It is also insisted by the appellaut that the evidence is insufficient to sustain .the verdict, because it shows by the testimony of Rebecca Carter that Manly Richards, in his lifetime, for a valuable consideration, released Thomas 'M. Carter from the payment of the note. We do not read the testimony of Rebecca Carter in that light. Her testimony as to a release, whatever it might prove, was in reference to a note for five hundred and fifty dollars, and not to the note in suit, although that was mentioned in the same connection; besides, the testimony of Mary J. Carter shows that Thomas M. Carter, after the death of Manly Richards, admitted the validity of both notes, and said that he would pay them. This would contradict the fact that he had been released on either note. We can not
4. The court instructed the jury that “An agreement on the part of Manly Richards to release Thomas M. Carter from the note in suit would not be binding, and would not release him, unless Manly Richards received a consideration or a compensation for so doing.” This instruction is correct, as stating a legal principle. Besides, when we look into the evidence and see that the alleged release, if any was ever made, was by parol and without any consideration, it is very clear that the appellant has not been injured by the instruction.
4. The court refused a certain instruction asked by the appellants. We need not set out this instruction; for, if the one above noticed- was properly given, it can not be contended that the other was improperly refused.
6. The appellant' insists that the promise of Joseph J. Carter is within the statute of frauds. We have frequently, in such cases, decided otherwise. See the authorities, supra.
7. It is also complained of as erroneous, that the court did not render judgment against Joseph J. Carter, as the administrator of the estate of Thomas E. Carter. Perhaps such a judgment might have been properly rendered by the court in the ease; but we can not see what ground that affords to reverse a judgment, properly rendered,' against Joseph J. Carter personally ; and surely Joseph J. Carter can not complain, as administrator, because there is no judgment against him as such administrator. Nor is there any ground for Thomas M. Carter, he being a maker of the note, to complain of the judgment. Besides, we do not find in the record any motion for such judgment, nor any objection or exception to the judgment as it is rendered.
8. The judgment is rendered according to the terms of
We have thus examined the questions presented by the record and discussed by the parties in their briefs, and find no error.
The judgment is affirmed, at the costs of the appellants.
