52 Ind. 128 | Ind. | 1875
This was an action by the appellees as executors of the last will and testament of James Huston, deceased, against the appellants, on an obligation in the form of a bond of indemnity executed by the appellants to said deceased. The bond is in the penalty of three thousand dollars, and is dated August 5th, 1865. The condition recites that the deceased had sold and transferred to Jeptha Steele, Robert Marks and John S. Reid three-fourths of a stock of goods, groceries, merchandise, notes, book accounts, and fixtures, owned and held by him in the firm name of Huston & Co., in the town of Connersville, etc., in consideration, among other things, that he, the deceased, should be saved entirely harmless from all liabilities and indebtedness of the firm of Huston & Co., of every kind whatever, and concludes as follows:
“Now, if the above bounden parties shall save the said James Huston entirely harmless from three-fourths of each and all of the debts and liabilities of said firm of Huston & Co., and shall, within six months, pay or cause to be paid said debts and liabilities, then these presents shall be void, else to be and remain in full force and virtue.”
It is averred in the complaint, that said James Hustowas the only member of the firm of James Huston & Co.,
The complaint was held good on demurrer thereto. The defendants Steele, Marks and Reid answered in four paragraphs, the first and fourth of which wex'e held bad on demurrer thereto for want of sufficient facts.
Reply in denial of the second and third paragraphs. The trial was by the coux’t, without a jury. Thex’e was a finding for the plaintiffs, a motion for a new trial made by the defendants overruled, and judgment on the finding.
Errors ax’e assigned calling in question the action of the coxxrt in overruling the demurrer to the complaint, and sustaining that to the first and fourth paragraphs of the answer, and in refusing to grant a new trial. The complaint is clearly sufficient.
In the first paragraph of the answer, the defendants pleading the same admit the execution of the bond, but say that the same was procured by the fraud of said deceased, as follows : The said deceased and William Huston, who was a silent partner of the deceased, on the 5th day of August, 1865, being the sole owners of a stock of goods, etc., in, etc., held by him under the name of Huston & Co., of the value of two thousand seven hundred dollax’s, sold to the defendants Steele, Marks and Reid the xxndivided three-fourths
It is exceedingly difficult to say exactly what this paragraph of the answer means. We are of the opinion, however, that the demurrer to it was properly sustained. It does not clearly show that the bond was obtained by fraud, or without consideration, nor does it amount to an answer of payment. We are at a loss to see any merit in the answer, so far as it attempts to set up fraud. It is, to say the least, exceedingly improbable that it was represented by Huston that there were no debts of the firm of Huston & Co. If he made such representation, why was it deemed necessary that the appellants should execute a bond to him by which they agreed to pay three-fourths of the amount of such debts, and save him harmless from the payment thereof? How could they be defrauded by a representation that there were no debts of the firm of Huston & Go., when the bond which
“4. For further answer, these defendants say that the indebtedness of said Huston & Co., which said Huston fraudulently represented did not exist, amounted, at the time of the execution of said bond, to the sum of, to wit, three thousand dollars, of which the amount set forth in plaintiffs’ complaint formed a part; that these defendants paid and saved the said Huston entirely harmless from the said three-fourths of the whole of said debts, before notice of said fraud; that the said Huston never accounted to or paid to defendants any portion of the sum so paid by them, nor have his executors done so since his death.”
There was no error in sustaining the demurrer to this paragraph of the answer. It sets forth no fraud with certainty sufficient to amount to a defence.
There is no bill of exceptions in the transcript, and no question is presented for decision under the last mentioned error assigned.
The judgment is affirmed, with five per cent, damages and costs.