| Ind. | May 15, 1865
The appellant sued the appellee before a justice of the peace. In his complaint, he averred that on the 4th day of October, 1861, one Clemens Bymer was indebted to him in the sum of $110, due on or before the 1st day of January, 1863, and that to secure the note, Bymer executed a mortgage on two mares and a wagon, then owned by Bymer; that the appellant neglected to record his mortgage within ten days, and that Bymer afterward, without the knowledge or consent of appellant, disposed of one of -the mares to a person unknown to appellant, who conveyed it away beyond the reach of appellant. That afterward, Bymer secretly, and without appellant’s knowledge, sold
The appellant brought the note into court, and demanded judgment for the value of the mare and wagon, $125.
The appellee moved to dismiss the suit, for the reason that it did not state facts sufficient to constitute a cause of action. The justice overruled the motion, and thé appellee answered in two paragraphs: 1st, a general denial. 2d, the statute of frauds; that the contract was for the sale of goods of over $50 in value; that it was not in writing; that no earnest money was paid, nor any part of the property delivered.
The justice decided against the appellant.
In the Circuit Court, the appellee renewed his motion to dismiss the cause, but the court overruled the motion. The appellant then moved to strike out the second paragraph of the answer, which motion the court overruled.
The cause was then tried, and a finding had for the
The appellant assigns as error the action of the court in overruling his motion to strike out the second paragraph of appellee’s answer. That paragraph treats the transaction stated in the complaint as a sale. If it could be so regarded, we are not clear that a payment of a consideration by the appellant, in the purchase of the seventy dollar note given by the appellee, would not avoid the application of the statute of frauds. But however that may be, we regard the contract stated as simply an agreement, by the appellee, to waive alii rights acquired by him as a purchaser without notice, and, for a certain consideration, to allow the mortgage the full force' and effect upon the property that it could have in law as. between the parties. The complaint alleges the- payment of the consideration, and the plea of the statute of frauds-constitutes no defense to the action. The motion to,strike out the second paragraph of the answer should, have been sustained. The evidence for the appellant sustains the' averments of the complaint.
The judgment is reversed^ with; costs,, and the court-directed to sustain the motion, to strike out the second; paragraph of the answer of appellee.