23 Ind. 105 | Ind. | 1864
Lead Opinion
We think the averments in the complaint in this case bring it within Kirk et ux. v. The Fort Wayne, etc. Company, 13 Ind. Pep. 56; Merritt v. Wells, 18 Ind. 171. The plaintiff avers that she paid the money to the defendants to pay off a certain mortgage, which they specially agreed to pay off for her, and gave the mortgage in question to secure the performance of the agreement. They
Per Curiam.—The judgment is affirmed, with one. per cent, damages and costs.
Rehearing
On Petition for a Rehearing.
Since the present judges came into office, an earnest petition for a rehearing has been filed. The question involved is of importance; the principle to be settled, one that must govern in at least one other case now under consideration; and as we find, on examination, that the decisions of this court on this subject are conflicting, we have given this question the attention which, under the circumstances, seemed to be demanded.
This was a civil action, instituted in the Court of Common Pleas of Montgomery county, by Charity Britton, the appellee, to foreclose a mortgage given by John W. Johnson and his wife, Bose A. Johnson, to secure the performance by John W- Johnson of the following contract:
“ I, John W. Johnson, having this day conveyed to Charity Britton a part of lot No. 52, on the original plat of the town of Crawfordsville, on which there is a mortgage given by me to Jeremiah Busenbark for $540, which amount I hereby agree to pay within the time specified in said mortgage; said mortgage bearing date Pebuary 11, 1860, and recorded in Mortgage Record No. 4, on page 499. Witness my hand, this 15th day of August, 1860.
“(Signed) John W. Johnson.”
The complaint alleges that the plaintiff below fully paid the said John W. Johnson the consideration for his undertaking to pay and remove said mortgage from said premises;. but that defendant failed to pay said mortgage within the time specified by the terms of said mortgage, and that Busenbark, after the debt became due, obtained in the court below a decree of foreclosure of his mortgage, and the complaint avers that defendant had failed to pay the same.
The agreement of Johnson is not one of indemnity merely, but a promise to pay his debt to Busenbark at maturity.
In the case of Loyd et al. v. Marvin et al., 7 Blackford, 464, the condition of the bond was, that “should said Brown indemnify the said John and Allen Loyd, the plaintiffs, and save' them perfectly free and harmless from the operation of said judgment, by virtue of the liens thereof, then the obligation to be void.4’ This was held to be a bond of indemnity. That case bears no analogy to the one at bar.
But the cases of Schooley et al. v. Stoops et al., 4 Ind. 130, and Tate v. Booe et al., 9 Ind. 13, are in direct conflict with the decision of our predecessors in this case, and it becomes our duty to determine which shall stand. The case of Schooley et al. v. Stoops et al., supra, was decided 27th of May, 1853, and was determined in the Wabash Circuit Court before the code came in force. Perkins, J., in delivering the opinion, says: “'We are aware that there are cases, and |>articularly Lethbridge v. Mytton, 2 Barnw. & Adolph. 772, that seem to be against the view we have taken, but we think the rule they support an unreasonable one. See Sedgwick on Damages, 2d ed., 182-183.”
We are not aware of any decision in this country or in England sustaining Mr. Sedgwick’s view of this question to the extent to which he carries it. Mr. Justice Waite in a dissenting opinion in the case of Lathrop v. Atwood, 21 Conn. 117, argued with great force that Mr. Sedgwick was right, but we think this is the only court in which this prin
In the case of Loosemore v. Radford, 9 Meeson &Welsby, 657, the defendant had covenanted to and with the plaintiff to pay third persons a debt due from the defendant, for which the plaintiff was surety. The plaintiff had paid nothing. Verdict for the whole amount due to the third persons. Motion for a new trial. Parke, B., said: “ I think there ought to be no rule. This is an absolute and positive covenant by the defendant to pay a sum of money on a day certain. The money was not paid on that day, nor has it been paid since. Under these circumstances, I think the jury were warranted in giving the plaintiff the full amount of the money due upon the covenant. If any money had been paid in respect of the note since the day fixed for the payment, that would relieve the plaintiff pro tanto from his responsibility. The defendant may, perhaps, have an equity that the money he may pay to the plaintiff, shall be applied in discharge of his debt. But at law the plaintiff is entitled to be placed in the same situation, under this agreement, as if he had paid the money to the payees of the bill.”
In Wilson v. Stilwell, 9 Ohio State Rep. 467, the bond which was the foundation of the action, was for $3,000, and the condition was-in these words:
“ The condition of this obligation is such, that whereas the above bounden, John M. Tooker, has agreed to pay all the liabilities of the late firm of J. M. Tooker § Go., if the said John M. Tooker shall settle up and liquidate all the just claims against said firm of J. M. Tooker Go., then this obligation is to be void and of no effect, otherwise to remain in full force and virtue.” It was held: 1. That Stilwell, the obligee, without first having paid any
Busenbark was, under the code, a proper, but not a necessary party; Johnson, if he had desired it for his protection, might have made him a party, and if Busenbark had asked it, the court should have admitted him a defendant to the suit. But the demurrer was not for the want of proper parties, and the court below did right in overruling it. 2 G. & H., p. 79, sec. 50, clause 4. Collins v. Nave, 9 Ind. 209; Manlove v. Lewis, Id. 194. The cases of Schooley et al. v. Stoops et al., and Tate v. Booe, supra, are overruled.
The petition for a rehearing is overruled, and it. is ordered that this opinion be certified to the court below as well as the original opinion in the case.