123 Ind. 277 | Ind. | 1890
This case is here for the second time, Houek v. Graham, 106 Ind. 195.
Upon a return of the cause to the lower court the appellee Shields filed a separate answer, in which he averred that prior to signing his name on the back of the note now in controversy he was surety on a note payable to the Sulli
The court overruled a demurrer to this answer, and the appellant excepted.
Upon issues formed the cause was tried by a jury, who returned a special verdict. The court overruled a motion by appellant for a new trial, and, also, a motion for judgment in his favor on the special verdict. The court sustained a motion by appellee for judgment in his favor on the special verdict, and rendered judgment against the appellant for costs.
The errors assigned call in question the correctness of the above rulings of the circuit court.
The special verdict follows, and sustains the answer above set out in every particular.
The questions arising on the demui’rer to this answer, and the questions arising on the motions for judgment on the verdict may, therefore, be properly considered together; for if the answer is sufficient to bar a recovery on the complaint the court did not err in overruling the motion by the appellant for judgment in his favor on the special verdict, nor did the court, err in sustaining the motion of the appellee.
The complaint is drawn upon the theoi’y that the appellant and the appellee Shields were co-sureties on the note paid by the appellant to the Sullivan bank.
Under this rule the appellee Shields had the power when he signed the note in suit to fix his relation to such paper as a surety for the appellant. This the answer before us avers he did by an express agreement both with the principals in the note and the payee. This being true, he was not a co-surety with the appellant, and is not liable to contribution. The answer averred a good defence to the cause of action set up in the complaint, and the court did not err in overruling a demurrer thereto; nor did the court err in overruling the motion of the appellant for judgment in his favor on the special verdict; nor in sustaining the motion of the appellee for judgment in his favor on said verdict.
The court permitted witnesses to testify to conversations between the appellee Shields and the officers of the bank and Hostetter and Williams, and the attorney of the appellee pending the negotiations which resulted in the signing of the note paid by the appellant, relating to the character of the liability which appellee would assume in signing, and, also, what was said at the time the appellee signed the note. The appellant was not present at these conversations.
There was no error in the admission of this testimony. It was part of the res gestee, and tended to show the character in which the appellee signed the note, and his relation to the other parties to the paper.
As we have said, the appellee, at the time ho signed the note, had the right to fix his relations with reference to the other parties whose names preceded his, and what was said and done in the negotiations which led up to his signing, and what was said at the time he signed, was the only means by
There is no error in the record.
Judgment affirmed.