55 Ind. App. 112 | Ind. Ct. App. | 1913
Millard Reyman, as guardian of Anna Cray-craft, a person of unsound mind, brought this action by a complaint to recover on a note executed by defendants to one Mat Kinney and by him transferred to plaintiff, which note it was alleged, was delivered by mutual mistake of plaintiff and defendant Morris to said defendant as paid, whereas in truth and in fact there was due plaintiff as guardian the sum of $100. Plaintiff recovered judgment for $100.
The errors assigned and argued question the court’s action in overruling appellants’ motion made at the close of plaintiff’s evidence, to instruct the jury to return a verdict for defendants, and in overruling appellants’ motion for a new trial, on the grounds that the verdict of the jury is contrary to law, and is not sustained by sufficient evidence.
We can see no reason why the same rules of law should not be applied to this ease as to one where counterfeit money
If appellant Wyman, the surety, had surrendered to the maker anything of value which might have been delivered to him for his protection on his becoming such surety on the note and he had lost any legal rights existing between himself and such maker, by reason of the note being canceled by appellee’s mistake the case might require a different consideration. While we do not think the mistake of appellee would operate as a discharge of the obligation between appellee and the payor, yet such payee might, under such circumstances, be estopped to assert any further claim against the surety. See cases above cited. Appellants have presented no such conditions, however, and we are not required to consider further this phase of the subject.
We find no error in the actions of the court which are complained of. Judgment affirmed.
Note.—Reported in 103 N. E. 423. See, also, under (1) 30 Cyc. 1325; (2) 30 Cyc. 1180; (3) 30 Cyc. 1316; (5) 2 Cyc. 699.