106 Ind. 286 | Ind. | 1886
The second paragraph of the appellee’s com
The fact that the notes were worthless is a sufficient excuse for not endeavoring to collect them. A party is not required to do a vain and fruitless thing.
There was no necessity for a demand. Where money is due the plaintiff on a contract, the suit constitutes a sufficient demand. School Town of Princeton v. Gebhart, 61 Ind. 187; Frazee v. McChord, 1 Ind. 224; Bradfield v. McCormick, 3 Blackf. 161; Ferguson v. State, ex rel., 90 Ind. 38.
The appellee was not bound to tender back the notes to the appellant before bringing this suit. Whatever may be the rule where the suit is to procure the rescission of a contract, no tender is required in such a case as the present. The notes were, under the contract, in effect nothing more than a collateral security for the promise of the appellant, and by accepting such a security the appellee did not lose her right to proceed against the principal debtor. It is well settled that a creditor may proceed against the principal debtor and upon the collateral securities at the same time, although there can, of course, be but one satisfaction. Colebrooke Collateral Securities, 146.
The fifth paragraph of the answer counts upon a written agreement compromising all differences between the parties and releasing the appellant from all claims and demands. To this answer the appellee replied, in substance, as follows:
We regard this reply as sufficient. If the notes were worthless, the appellee received no consideration for the compromise, and the appellant practiced a fraud upon her in securing the written contract. We can not permit a litigant to be deprived of his rights under a contract procured by fraudulent representations, and for which no valuable consideration is yielded. The averment of the representation that the notes were executed by solvent persons, taken in connection with the other allegations of the reply, is sufficient to show that there was such a fraud as vitiated the contract of compromise. McLean v. Equitable Life Assurance Society, 100 Ind. 127 (50 Am. R. 779); School Town of Monticello v. Grant, 104 Ind. 168; Fleig v. Sleet, 1 N. E. Rep. 24.
The fourth paragraph of the appellant’s answer admits the •conveyance to him of the real estate described in the complaint, and alleges that in consideration of such agreement he conveyed to her certain real estate in the town of Greenfield, ■of the value of eight hundred dollars, and transferred to her ■divers promissory notes of the value of eight hundred dollars, and that she accepted the property and notes transferred in full satisfaction of her claim. To this paragraph of the answer the appellee replied, substantially, as follows: That she
The answer is ambiguous, but, whatever force be ascribed to it, we regard the reply as sufficient. If the answer is to be construed as affirming that the Greenfield property was accepted in payment, then the reply is good as an argumentative denial; if the answer is to be construed as pleading the acceptance of the note's as a payment, the reply is sufficient, because it shows that the notes were fraudulently represented to be good, when, in fact, they were worthless. The representation that promissory notes are good and made by solvent parties, is not a mere commendation of quality, but is the statement of a fact.
The appellant’s counsel argue that the statute of limitations bars a recovery, because the evidence shows that thé cause of action accrued in October, 1877, and that this action was not instituted until March 7th, 1884. The evidence shows, in addition to these facts, a written agreement acknowledging the debt, compromising all matters of dispute, and providing that the appellant should pay the appellee two hundred dollars in money and transfer to her notes of solvent
The deed to Troy was properly admitted in evidence, for it was executed as a part of the same general transaction as that out of which this controversy arises. It is a familiar rule that all papers executed in the course of a transaction are admissible. The position of appellant’s counsel upon this point can not be maintained.
We perceive no available error in admitting evidence of the value of the Greenfield property. The appellant himself brought the question of the value of the Greenfield property into the case by pleading that it was received by the appellee in exchange for her land. But, if this were not so, this testimony would have been proper as tending to support appellee’s theory that she received the notes transferred to her upon the appellant’s representation of the solvency of the makers; for it is fair to infer that she did not accept property in satisfaction of her debt of a much less value than the amount due her.
The statements of Troy not made in the presence of Mrs. Jackson could not bind her, and it was therefore proper to exclude evidence of such statements.
There was no error, in excluding testimony as to the value of the land bought by the appellant of the appellee, for that value was fixed by contract, and there was no. plea of a want or failure of consideration.
No evidence was offered by the appellee tending to prove that Mrs. Jackson was of unsound mind, and it was therefore proper to exclude evidence offered by the appellant to prove that she was of sound mind.
We decline to disturb the finding upon the evidence. We think there is evidence tending to show that the so-called
Judgment affirmed.