45 Ind. 113 | Ind. | 1873
This was an action upon a note executed by the appellant, payable to the appellee.
The answer consisted of three paragraphs: 1st. The general denial. The second alleges that the appellant and appellee were partners; that on the day of the date of the note sued on, they dissolved their partnership, the appellee withdrawing from the business, the appellant agreeing to pay him five hundred dollars for his interest, in one year, with interest at six per cent., and for which the note was given; the appellant also agreeing to pay all the firm debts except one note for a span' of mules to one J. W. Simpson, for which the appellee agreed to pay, and which mules he drew out of the firm. All the residue of the firm property was retained by
The third paragraph is substantially the same as the second, except that it has a prayer that the note to Simpson may be set off, etc.
A joint demurrer was filed to the second and third paragraphs of the answer and sustained, to which the appellant excepted. The cause was tried by the court, who found for the appellee the full amount of the note, with interest and' attorney’s fees, and, over a motion for a new trial, judgment was rendered on the finding.
The errors assigned are in sustaining the demurrer, and In overruling the motion for a new trial.
■ No bill of exceptions appears in the record, and no question arises on the error assigned for overruling the motion for a new trial.
The question arising on the second and third paragraphs of the answer is fully answered in Johnson v. Britton, 23 Ind. 105, and the authorities there cited. The principle decided was, that where one covenanted to pay the debt for which the obligee was liable and failed, the obligor was liable to the obligee without his first paying the debt, or being specially . damnified, and that he could recover on the agreement, to> the amount of such debts remaining unpaid. The cases of Schooley v. Stoops, 4 Ind. 130, and Tate v. Booe, 9 Ind. 13, were overruled.
Whether Simpson should be made a party is not before us. Perhaps the appellee will be entitled to have him before the court for his own protection. In Wilson v. Stilwell, 9 Ohio St. 467, the court ordered the creditors to be made parties, so that the obligors of the bond might pay them off and have credit for the amount paid.
In this case, the note to Simpson is less than the one by the appellant to the appellee. But it has been held that a set-off is not strictly a defence, and that, from its very nature, It can only be regarded as an answer to so much of the
The judgment is reversed, with costs. The cause is remanded, with instructions to overrule the demurrer to the second and third paragraphs of the answer, and for further proceedings, etc.
