15 Ind. 362 | Ind. | 1860
Suit on a note and a writing, named in the pleadings a warrant. Answer, setting up that the defendant
The note w-as not left with an attorney, so as to have suit brought at the first term .of .Court after it was so delivered; and for causes not disclosed, judgment -was -no.t obtained, for near a year and a half thereafter.
Questions as to the degree of diligence requisite, upon the part .of Hall, in -reference to the collection of said note, are raised; and .also, as to ¡the admission .of certain evidence upon .the trial.
We think that Hall -was hound to use reasonable .diligence in the management of the note, or claim, that was delivered to him. He was to account for it, .or leave it with an attorney, &c. If he midertook to dispense with the alternative of leaving it with an attorney., it was then incumbent on him to show that he had exercised that degree of diligence which would excuse him froni accounting for the amount of the note, if it could not he collected. If he decided .to choose the alternative of leaving the -same with an attorney, he would, as to that, have to show that -he had, in like manner, exercised diligence in that act. Each case must,.to some extent, he controlled by its own facts, as :to whether there was due diligence exercised; therefore, no precise time'can he fixed, as being sufficient -to -aver the non-performance of ¡the one or the other of the acts, in the pleadings; unless the averment could have been of non-performance -at. a day so remote from the day of the delivery of the note, as to .enable the Court to say, that the want of diligence cou-ld have b.een inferred from the space of
There was a reply filed denying, &c. Trial, finding and judgment for the defendant, for seventy-three dollars, which was the difference between the claims sued on, and that set up in defense.
Upon the motion for a new trial, the sufficiency of the evidence, to sustain the verdict, is questioned. The note was delivered to Hall on March 26, 1856, at Oonnersville, Fay. ette county. The first term of the Wayne Common Pleas, which was the first term of a Court thereafter, in said county, commenced on April 7. Roby resided near Abington, Wayne county: Hall at Brownsville in Union county. Hall caused the note to be presented to Roby on March 27, and demanded payment, which was refused, and he was told it would not be paid. The note was delivered to attorneys on June 12, and suit brought in time for the July term of said Common Pleas. By the evidence the want of diligence is rested upon the fail • ure to bring suit at the first term. The evidence does not show whether Roby was, between March 26, and June 12, solvent or not; except that when Hall got the note, he stated, he thought he might be good, but he did not know how long he would be so. Hor were his circumstances shown afterward. It is true the record of the suit upon the note was given in evidence, but for one purpose only, namely, to show the time when suit was instituted; but the whole record went in evidence, and showed a return of no property found, if it had been before the jury for that purpose.
We are of opinion that the evidence does not sustain the judgment.
The evidence shows that but twelve days intervened between the day when the note was obtained by Hall, and the term of the first Court having jurisdiction. Service had to be ten days, or no steps could be taken to force a judgment. We do not think that, under the arrangement, he was compelled to sue, without first making an effort to collect it without. Two days were not sufficient to traverse three counties,
The judgment is reversed, with costs.