51 Ind. App. 461 | Ind. Ct. App. | 1912
— Appellees sued appellant on a promissory note for $58, and recovered judgment. On appeal, the only error assigned is the action of the trial court in overruling appellant’s motion for a new trial. Two grounds are assigned in this motion: (1) That the verdict of the jury Is not sustained by sufficient evidence, and (2) that the verdict is contrary to law.
The complaint is based on the note, and is in the usual form. The answer was in three paragraphs, the first setting up a want of consideration, and the second a failure of consideration for the note sued on. The third paragraph avers, in substance, that appellees drilled a well for
A general denial was filed to each paragraph of answer, and to the counterclaim. There is no claim that the evidence is not sufficient to sustain the complaint, and it is practically conceded that the evidence shows, without dispute, that at the time the contract was made appellee guaranteed a good well, and that it went dry within six months after it was completed, and was of no value. In fact one of the plaintiffs in his testimony practically admits that there was a guarantee at the time the contract was made, but he says that there was none at the time the well was finished, and when the note in suit was executed.
Such evidence does not tend to prove that the defendant, at one time, had a cause of defense to the note, and that such cause of defense was terminated by subsequent occurrences ; but, on the contrary; it tends to prove at the very time the note was given there was no subsisting warranty on which a defense could be based.
Judgment affirmed.
Note. — Reported in 99 N. E. 1013. See, also, under (1) 34 Oyc. 1045, 1050; (2) 31 Cyc. 693; (3) 34 Oyc. 1099; (4) 2 Oyc. 693; 38 Oyc. 1393; (6) 3 Oyc. 300; (7) 3 Cyc. 348.