135 Ind. 655 | Ind. | 1893
This was an action brought by the appellee, against the appellant, in the court below, to obtain a judgment and decree, declaring certain notes, and amortgage executed to secure the same, null and void, and to cancel said mortgage.
The complaint is in two paragraphs; and each substantially avers that at the time of the execution of the notes and mortgage in controversy there were two suits pending in the Madison Circuit Court, one of which was a proceeding by Maleva Hutson, against the appellant and appellee herein, to foreclose a vendor’s lien on cer
There is a slight difference between the verbiage of the two paragraphs of the complaint, but we think each one sufficiently shows that no consideration moved from the appellant to the appellee for the note in suit, and that as between the appellant and the appellee, [the former was primarily liable for the amount paid in the foreclosure proceeding. The averments that the appellant falsely represented to the appellee that he had a proposition from Redwine offering to compromise the action for $200, and that it was necessary that he have that sum to pay in the settlement of said cause, and that the appellant was paying the amount to Redwine for appellee to adjust the same; that the appellee believed these statements to be true, and relying thereon executed the notes and mortgage in suit, are representations as to existing facts and the further averment that the appellant never compromised said suit, nor paid any amount for appellee in settlement or otherwise, sufficiently shows that the consideration for the notes in suit failed, and entitles the appellee to their cancellation.
It is insisted, by the counsel for the appellant, that the allegations of fraud are only by way of recital, and nothing more, and that there is no averment that the representations claimed to have been made were false or untrue-.
It does not appear from the complaint, unless it be by inference, that Redwine was demanding $200 from appellee in settlement of the damage suit, at the time the representations were made and the notes were executed; but whether he did or did not claim it, the fact remains, from the averment, that he never received a farthing from
The fourth error assigned is, “That the court erred in overruling the appellant’s motion for a new trial of said cause.” This, counsel say, they regard as the most important, and upon it they rely for a reversal of this case. Under this specification, they contest the sufficiency of the evidence to sustain the verdict and judgment. The rule that the court will not reverse a case upon the weight of the evidence is so well settled by repeated decisions of this court that citations of authorities are unnecessary to sustain it. The jury áre the judges of the credibility of the witnesses, and it is their province to weigh the evidence and determine its preponderance. There must be an absolute failure of the evidence on some material point before this court will interfere with the judgment because of the evidence. North Manchester, etc., Ass’n v. Wilcox, 4 Ind. App. 141.
We have carefully examined the evidence in this case, and find that there was evidence introduced on every material point necessary to a recovery, tending to support the verdict of the jury, and if there were evidence in the record of a conflicting character, we could not disturb the verdict and judgment upon the weight of the evidence. We will not attempt to summarize the testimony in this case. It is enough to say that the appellee’s recital of the events leading up to the execution of the notes and mortgage in suit supports the allegations of his complaint, and makes a case for the equitable relief he was granted, and that the appellant, at no time, had any claim upon, or demand against, the appellee, by
It is also insisted, by counsel for the appellant, that the court erred in permitting the appellee to introduce in evidence the third paragraph of the complaint in the case of Hutson et al., against the appellant and others to foreclose the vendor’s lien, and the cross-complaint in said cause; also that the court erred in admitting the deed from the appellant to the appellee in evidence.
In view of the issues in the case under consideration, we think there was no error in the rulings of the trial court, that could prejudice the rights of the appellant. The pleadings show that there had been an action pending to enforce a vendor’s lien, as was alleged in the complaint, and they identify that proceeding. The deed, having been executed by the appellant, was competent evidence against him as to that transaction, just as any other act, admission, or declaration would be, where it tended to explain a matter at issue.
The judgment of the lower court is clearly right upon the evidence, and it is affirmed.