72 Ind. 62 | Ind. | 1880
— The only questions which counsel discuss are those arising upon the ruling of the court denying the appellant’s motion for a new trial, and these are the only questions we shall consider, although errors are assigned upon other rulings.
An abridgment of the evidence will, substantially, exhibit the material facts : Cyrus Spillman and James Grimsley, as partners, had executed their note to appellant;’ the partnership was dissolved, and Spillman undertook-to pay the note. Spillman had taken out a policy of insurance for the benefit of his wife, the appellee, Mary H. Spillman, and this policy was assigned by said Cyrus Spillman to the appellant. Spill-man died some time after the assignment of the policy. After the death of Spillman, the appellant, as assignee of the policy of insurance, instituted an action thereon against the insurance company.
On the 12th day of September, 1872, the parties entered into the following agreement:
“Cyrus C. Spillman with James Grimsley heretofore gave their note to William N. Cunningham, on which there is due about the sum of $5,000. Said Spillman, by agreement-with said Grimsley, assumed the payment of the whole of said claim to said Cunningham, and afterward said Spillman, to secure the payment of said claim, assigned to said Cunningham a policy, No. 1,460, in the National Life Insurance Company of the U. S. of A. on the life of him, said Spillman, for the sum of $5,000 in favor of Mary H. Spillman, wife of said Cyrus, and a controversy has arisen between said Cunningham and Mary H. as to whether she joined with Cyrus in the assignment of said policy, and said Cunningham has instituted suit in the Superior Court of Marion Couiffy against said company and Mary H. to-recover the amount of said insurance, which action is still pending. Now it is agreed
It does not appear in the transcript of the proceedings in the case of appellant against Spillman’s estate, given in evidence by the appellant, how the appellee got out of that case; but, among other stipulations in an agreement made as to the facts, is the following : “ It is further agreed that the agreement between the defendant herein and Cyrus C. Spill-man’s estate and the estate of Abner Alexander, deceased, and disclaimer and withdrawal, etc., were filed after the' issues were formed, trial had and verdict rendered, and when motion was pending for judgment on the verdict in favor of the plaintiff herein, in his action against the estate of Cyrus Spillman.” The agreement between appellee and the representatives of Abner Alexander, deceased, is set out, but we need only state generally the substance of its provisions.
As we understand the argument of appellant, it is that, as he lost his right to receive the sum which it was stipulated, in the agreement between him and the appellee, he should have out of the avails of the policy of insurance, he is entitled to judgment for that sum against the appellee, for the reason that she dismissed and disclaimed in the proceedings instituted by appellant against Cyrus Spillman’s estate, and in which she was a'party defendant. The only item of evidence which allows the appellant any appearance of fact, upon Avhich he can, with the barest shade of plausibility, assume that her disclaimer injuriously affected him, is, that instead of getting a judgment giving him a right in the policy of insurance, he obtained judgment solely for the;
The contract will not bear any such construction as that which appellant places upon it. The appellee does not undertake to aid appellant in securing judgment against the estate of her deceased husband. .She was not bound by the; terms of the contract to join in any proceedings against the estate, nor to take,any part in the litigation. There was no agreement, express or implied, upon her. part to do anything more. than permit appellant to draw and appropriate all money in excess of fifteen hundred dollars upon the policy •of insurance which had been taken out by her deceased husband. The appellant is altogether wrong in assuming that the, contract bound her to assist in the litigation .against the estate of Cyrus Spillman. If she was not bound by contract to do this, she could not have broken any contract, by refusing in the first place to haye taken any part; nor could she be said to have broken any contract because, after having been brought into the case, she withdrew from it and disclaimed all interest in the subject-matter of the litigation. .
If, however, the appellee was a proper party defendant in the case instituted by appellant against Spillman’s estate, the appellant, by his own showing, had brought her into court, and she could not legally have gone out over his ob
Judgment affirmed.