31 Ind. 161 | Ind. | 1869
The appellants, Samuel Coy, William G-. Whit-comb, and William T. Lee, sued Jeptha P. Stueker, John Long, Joseph Miller, William Gailey, William Long, John R. Lee, Hezekiah Wells, Benjamin E. Neville, William Doyle, John Becker, William H. Betz, Edwin C. Jones, John H. Kennedy, Alexander Pruitt, James A. Kennedy, Thomas R. Reaves, James Barnhill, and John Cobb.
The agreement upon which this action is based reads as follows:—
“Whereas there is an action now pending in the Bartholomew Common Pleas Court, wherein Thomas J. Kennedy is plaintiff, and the undersigned and others are defendants, wherein said Kennedy sues for money expended by said Kennedy at their request in obtaining recruits under a call made by the President of the United States; and whereas the undersigned are desirous of compromising said cause and paying to said Kennedy whatever sum may be found due him; and whereas Samuel Coy, William T. Lee, and William Whitcomb are trying to compi’omise said cause and ascertain the sum due to said Kennedy,-in order to pay the same to him; now, therefore, we, the undersigned, agree to and with said Coy, Lee, and Whitcomb, that if they should compromise said cause, and ascertain the amount due to said Kennedy, upon any compromise they may make, to pay to said parties, or to said Kennedy, the proportional interest due from each of the undersigned as the ascertained amount due to said Kennedy; and should Coy, Lee, and Whitcomb agree upon the amount due to said Kennedy, and pay the same to him, or in any way satisfy the same, each of the undersigned promises and agrees to pay to him the proportional amount due from them, and severally promise to pay their several proportions of said amount that may have been so paid to said Kennedy, without re
The first cause of action alleges, that in pursuance of said agreement, plaintiffs did compromise said action, by giving their note to said Kennedy for $2,385.98, and that the said Coy had paid the same with his own funds, of all of which the defendants had notice.
The second cause of action is the same as the first, except that it avers, that Coy paid $1,449.06 over and above all sums paid to himself, Kennedy, his co-plaintiffs, or any one else authorized to receive the money; that his co-plaintiff's had paid nothing; and avers notice and demand.
The point was made below and put in various shapes, that the agreement is a several one, binding the parties severally to pay only their proportional shares of the amount agreed upon by plaintiffs, and that therefore the defendants were improperly joined in the same action.
The first error assigned and considered by appellants is the action of the court on the demurrers filed to the second paragraphs of the several answers.
The second paragraphs of defendants’ answers set up, that there were other parties defendants in said action by said Thomas J. Kennedy than those who signed said agreement; and that plaintiffs agreed to get all of said defendants to sign it, and failing to do so, the agreement was to be void and of no effect; and that it was upon that express condition and understanding that it was delivered to plaintiff's.
The third paragraphs of defendants’ separate answers aver, that in consideration that the defendant John H. Kennedy would pay three hundred dollars on the judgment against plaintiffs on said note given to Thomas J. Kennedy, and. that said John H. Kennedy and the defendants Reville and' Pruitt would become replevin bail for the stay of execution on said judgment, said Coy agreed to release said de
Demurrers were overruled, not only to the answers of Kennedy, Neville, and Pruitt, but also to the answers of the other defendants, who claimed that the alleged release of Kennedy, Neville, and Pruitt released them also.
The fourth paragraphs of answer of Kennedy, Neville, and Pruitt are substantially the same as the third paragraphs.
Demurrers were overruled to these second, third, and fourth paragraphs of answer.
Tire contract, so far as it agrees to indemnify, is a joint contract, and the parties are bound' by its terms to make good any loss sustained by the plaintiffs by reason of the insolvency of any one of said parties.
The second paragraph of the answer is in direct contradiction to the written contract, which asserts that the undersigned and others are defendants in the action pending in the Bartholomew Common Pleas Court. In the face of this express declaration in the contract, it will not be permitted that a parol agreement shall be set up, that the “ others,” were to sign the agreement before it should be binding upon the “ undersigned.”
It will not avail to cite decisions where parol 'evidence has been allowed to- control the effect of an instrument in form a deed. The peculiar advantages possessed by the lender over the borrower and the legal forms under which the equitable rights of the mortgagor were sought to be smothered, compelled the court of equity-cither to yield ker jurisdiction or break through legal forms and, disregarding technical scruples and difficulties, determine from proof whether a loan was the origin of the instrument, and if that were once established, to recognize and declare the equitable rights of the parties. But this “splendid instance,” as Chancellor Kent styles it, “of the triumph of equitable prin
The demurrer should have been sustained to this paragraph.
The third paragraph of the answer was also bad. The liability as to each person was also several, the agreement being to pay in proportion to the share of each; and a discharge of John IT. Kennedy, Seville, and Pruit, therefore, could not work a discharge of the other defendants from their several liabilities. The answer was only good as to those who became replevin bail under the agreement. The third paragraph of the answer of John H. Kennedy, Seville, and Pruitt, to the same effect, was good.
The plaintiffs could 'make a valid contract to pay a consideration for replevin bail on the judgment, and the agreement therefore to release John PL Kennedy, Seville, and Pruitt, on their securing the postponement of the collection of the judgment and John PI. Kennedy paying on the same the sum of three hundred dollars, was a good defense to the action in favor of the said Kennedy, Seville, and Pruitt, though not available as to the other defendants.
The fourth paragraph of the answer of said John PL Kennedy, Seville, and Pruitt, is also good, for the same reason.
The appellees also assign cross errors upon the sustaining of demurrers to the several pleas in abatement; but what we have already said as to the joint and several liability of the defendants under the contract sustains the action of the court below.
Demurrers were sustained to the fifth paragraphs of the answers of John Dong, James A. Kennedy, William Dong, Gailey, Lee, Wells, Becker, Betz, Jones, Reaves, Barnhill, and Cobb. That paragraph alleges, that the indebtedness, to compromise which the contract in suit was executed,
A demurrer was also sustained to'the sixth paragraph of Benjamin E. Seville’s answer. This ruling was correct. The plea was, that the payment of one hundred dollars discharged the liability. The contract was to pay the plaintiff's or Kennedy, upon the amount being fixed, and the breach of the contract therefore occurred then, and the payment of a less sum did not discharge the liability. .
There is also a seventh paragraph of the answer of John Long which alleges, that, there was a doubtful question of law as to the liability of the defendant under the contract; that a compromise was thereupon made and a less sum given in discharge of a greater liability. This paragraph was bad, as the construction of the written instrument in suit does not present a question of doubt authorizing a compromise of a given sum for a less. The eighth paragraph of Pruitt and John H. Kennedy’s answer is bad, for the same reason.
There are other errors assigned in rulings upon demurrers, but we have already exhausted the abstract, as effectually as the appellees have exhausted language, which fortunately has limits, in the construction of the answers filed. Te have been bewildered by the multitude of words, and, in doubt to which paragraphed mass the r'emark should apply, we make it to the answers in general, that the release by the plaintiffs of any one originally liable in the action pending when this contract was made, but not a party to the written contract, does not discharge the person so released from his liability to contribute his full share of such original liability upon the demand of the • defendants in this action; and therefore such release cannot avail the defendants here.
The judgment is reversed, and the cause remanded &r further proceedings in accordance with this opinion.