5 Ind. 160 | Ind. | 1854
Bryant sued Harrison and Campbell, in debt, upon a note for the payment of 150 dollars. Pleas, 1. The general issue. 2. Failure of consideration. The facts set up in the second plea are these:
Harrison was the principal in the note, and Campbell his security. Sometime previous and up until the execution of the note, Harrison and Bryant were partners in the drug business in the town of Valparaiso; and in consideration that Harrison would pay Bryant a certain amount of money, and the defendants would execute the note declared on, and another for a like sum, Bryant agreed that he would transfer to Harrison all his interest in said business; would retire from the drug business and not engage in the sale of drugs in said town for the term of one year. Pursuant to this agreement, Harrison paid Bryant the amount agreed on; with Campbell as his surety, Harrison executed the note in suit, and also another for 150 dollars. Bryant failed to comply with his agreement. For a long space of time, he withheld and concealed from Harrison a portion of the drugs, during which he was prevented from selling and making profits out of them. Nor did Bryant retire from business, but in fraud of the agreement, resumed business in said town, &c., to the great damage of Harrison, See.
To this plea there was a special demurrer sustained. The Court tried the issue upon the first plea, and found for the plaintiff. Motion for a new trial overruled, and judgment on the finding of the Court.
The second plea is objectionable, because it is not shown that Harrison, on account of Bryant's violation of the contract, sustained any specific amount of damage. Therefore the demurrer was correctly sustained.
But had the ruling of the Court been erroneous, such error, in this case, would have been insufficient to reverse the judgment. The general issue was in, and under it the matter set out in the plea would be admissible. 8 Blackf. 41, 427.—1 Ind. R. 322.—3 id. 286.
Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.
