14 Ind. App. 299 | Ind. Ct. App. | 1896
Appellant sued appellee before a jus
There is evidence to sustain the following state of facts : Upon March 20, 1893, the parties were partners in the manufacture and sale of buggies, etc., at Logansporfc. Upon that day the partnership was dissolved, and all matters between the parties settled, appellee purchasing appellant’s interest in the business. As a part of the settlement, appellee executed to appellant the contract sued on, calling for $1,261 in buggies. It was also a part of the terms of settlement that appellant should not sell the buggies at Logansport.
Upon the next day appellant expressed dissatisfaction with the settlement, declaring that he had lost money and wanted the matter fixed up, threatening that he would make trouble for appellee by talking to his men about him, thereby causing them to quit work, and that he would retail at Logansport the buggies which Cool had sold to him. After some discussion Cool finally agreed to give him $100 in six months if he would go away and leave him alone and mind his own business, and to give a note for it if appellant would keep it until it was due. Thereupon the note was executed, and in a few days sold to one who seems to be conceded to have been' an innocent purchaser for value before maturity, to whom appellee was compelled to pay the $100. The sum thus paid appellee set off against the balance due appellant under the contract. Appellant did, in a few days after the taking of the note, talk disparagingly to appellee’s men about him, although, so far as appears, without material effect, and did not sell the buggies at Logansport.
Appellant complains of the admission of evidence that at the time appellee agreed to give the note, appellant agreed that he would keep it. This was in fact a part of the conversation occurring at the time of the execution of the note, closely and directly connected with it, so blended with that part of the conversation which showed the consideration of the note,- that conceding it was not admissible as an independent fact, we are wholly unable to see, under the circumstances of this case, how it could have been harmful to appellant, nor have appellant’s counsel in their brief indicated to us how he was injured thereby.
The appellant asked that certain instructions be given directing the jury that if part of the consideration of the $100 note was appellant’s agreement not to sell the buggies in Logansport, this was a valid agreement, and, if carried out, furnished some consideration for the note, so that there was not a total failure or want of consideration for the note. Assuming, without deciding, that such an agreement, disconnected with any sale of business or of the goods themselves, was valid, the instructions are, nevertheless, faulty in this, that they wholly ignore and fail to negative the proposition that
The modifications of one of appellant’s instructions were not such as injured him. While the latter part of the modification is not most accurately expressed, still, we do not believe the jury could have been misled by it. Taking the instruction altogether it was more favorable to appellant than he was, for the reasons above given, entitled to ask. This modification only laid down a general principle. It could not be fairly construed to mean that if the consideration only partly failed, appellee could recover for that part which had failed. On the contrary, what was intended evidently was that where the consideration of a note fails in part only, there may be recovery by the holder for that part as to which the consideration has not failed.
The instructions given have been set out by counsel, and there have been some incidental references to them, but no points of objection thereto have been made and argued. We have not, therefore, taken them up.
We cannot accede to appellant’s proposition that because the note was payable in bank it must, if given without any consideration, be regarded as an executed gift. Nor can we agree that appellee’s payment to an innocent holder can be deemed a voluntary payment and the money thus paid not recoverable for that reason. The note having been executed to appellant without any-sufficient consideration therefor, appellee would have
Judgment affirmed.