60 Ind. 399 | Ind. | 1878
Suit by the appellee, against the appel- • lants, upon the following facts, alleged in the complaint, viz.:
“That one John Rodney was, on the 26th day of January, 1875, indebted to appellee on a promissory note in the sum of three hundred and twenty-seven and dollars ’’(setting out a copy of note); “ that, at the time said Rodney became so indebted to appellee, he was the owner of an undivided one-half interest of a certain coal shaft and- coal lease; that appellee had a mortgage upon said interest and property to secure the payment of certain other’ notes he held against the said Rodney, executed by the said Rodney to him; that said Rodney was indebted to the appellants,
There is the further allegation that Rodney has become insolvent.
A demurrer to the complaint was overruled, and exception entered.
Answer in general denial; trial by jury, verdict and judgment for the appellee.
The evidence is not in the record. The case is before us upon the sufficiency of the complaint.
It is claimed upon one side, and denied on the other, that the promise sued on is void by the statute of frauds. The complaint in the cause is not systematically drawn,
Condensed, it presents the following averments, viz.: That one Rodney was indebted to the appellee in several amounts, all but one of which were secured by a mortgage on certain property; that said. Rodney had also become indebted to Fleming, Black & Co., for which indebtedness they had no security beyond the person of the debtor; that they proposed to Rodney to give them a mortgage on the property on which the appellee then held a mortgage. Rodney declined to give it, except upon the conditions, that the consent of the appellee should be obtained, and that they should agree to pay his unsecured claim. The agreement was concluded. Rodney executed the mortgage, including in it the unsecured debt to the appellee, the mortgagees took possession of the property, and the appellee released Rodney, and he has become insolvent.
Probably the consent of the appellee to the mortgage to Fleming, Black & Co. would give it priority over his own. In this transaction, Fleming, Black & Co. obtained, for their own advantage, mortgage security for the debt due them from Rodney, and the possession and use of the property mortgaged, and the diminution of the indebtedness of Rodney, which, possibly, might have been made a claim, if it was not then, against said property. And, if the release of Rodney was from liability on the mortgage, as might be inferred from the facts that Fleming, Black & Co. took possession of and used the mortgaged property, and appellee made no attempt to enforce said mortgage, or if the assent of said appellee to the execution of the mortgage to said Fleming, Black & Co. gave the latter mortgage priority over his own, then the said company obtained unincumbered property of great value as security for their claim, and the appellee lost to a
The case is a clear one of the promise of one person to another for the benefit of a third person, which promise such third person can enforce. The consideration was sufficient. Hardesty v. Smith, 3 Ind. 39. It is not a contract within the statute of frauds. Luark v. Malone, 34 Ind. 444; Crawford v. King, 54 Ind. 6; Palmer v. Blain, 55 Ind. 11; McDill v. Gunn, 43 Ind. 315, on page 319, and cases cited; Miller v. Billingsly, 41 Ind. 489; Helms v. Kearns, 40 Ind. 124.
The equity of this ease is strengthened by the fact that the promise of the person to another for the benefit of a third was- communicated to such third person and relied upon and acted upon by him at the time, whereby loss to himself and gain to the party making the promise might occur.
The judgment is affirmed, with five per cent, damages and costs.