Hiatt v. Hiatt

28 Ind. 53 | Ind. | 1867

Elliott, C. J.

— Suit by the appellees against the appellant on the following obligation:

“May 8th, A. I). 1854. Know ye, that I, Esther Hiatt, do hereby bind myself to stand between Jesse and Elam Hiatt, and secure Jesse and Elam from any loss whatever by Eli Hiatt, in case the said Jesse and Elam would go Eli’s security on guardian’s bond for Elijah and. Nathan Hiatt.

“Esther Hiatt.”

The complaint alleges, inter alia, that the obligation, was given in consideration that the plaintifis- would become the sureties of' Eli Hiatt on his bond as guardian of Elijah and Nathan Hiatt, who- were infants, and for the purpose of indemnifying and saving them harmless as such sureties; that on the same day said obligation was given, the said Eli Hiatt was duly appointed guardian of said Elijah and Nathan Hiatt, and the’plaintifis became-the sureties on Ms bond, as such, in the sum of $6,000; that as such guardian, the said Eli afterwards received property and money of his said wards, amounting to> $2,000, which he converted to his own use, and became insolvent, and wholly failed and refused to. account for said money; that suit was subsequently brought on his said bond as such guardian, and judgment recovered therein against the plaintifis, in the Grant Circuit Court, for the sum of $1,750 05, which, together with interest thereon, amounting in the whole toll,856 46, they subsequently paid; that the said Esther liasfailed and refused to indemnify and save them harmless, as by the terms of said obligation she was bound to do.

Answer in six paragraphs. Demurrers were sustained to the second and fourth, and issues were joined on the others. Trial and verdict for the plaintifis. Motion for a mew trial by the defendant overruled, and judgment.

The first question discussed by the appellant's counsel relates to the sufficiency of the complaint. It is insisted that the court, instead of sustaining the demurrer to the second paragraph of the answer, should have sustained it. to the complaint. The objection urged to- the complaint is, that the obligation on which the suit is founded does not state a consideration, and is therefore void, under the statute-of frauds. This question is settled to the contrary by an express provision of the statute of frauds, which enacts that “The consideration for any such promise, contract, ©r agreement need not be set forth in such writing, but may be proved.” 1 GL & H. § 2 p. 851. It may also be remarked,, in reference to the obligation in the case before us, that although it is not aptly worded, it is manifest from its language, that it was given in consideration that the plaintiffs below would become the sureties of Eli on bis bond as guardian. The court did not err in overruling the demurrer to the complaint.

J. Brownlee, for appellant. A Steele and R. T. St. John, for appellees.

It is also insisted that the second paragraph of the answer is sufficient as a bar to the action. We think otherwise.' But as no abstract of that paragraph is furnished by the appellant, we decline a more particular notice of it.

Tho judgment is affirmed.