120 Ind. 584 | Ind. | 1889
It is averred in the complaint in this cause that on the 6th day of June, 1885, the appellant and the appellees entered into the following written, agreement, viz.: “ This agreement made and entered into by and between Columbus M. Pickett, party of the first part, of the county of Noble and State -of Indiana, and Thomas C. Green and
“ For, and in consideration of which, said second parties hereby agree to this day give said first party their note for one hundred dollars, due in ten days from date, and within said date to pay the same to said first party or order.
(Signed): “ Columbus M. Pickett, M. D. [Seal].
“ William T. Green, M. D. [Seal].
“Thomas C. Green. [Seal].”
It is further averred in the complaint that at the time of the execution of the above contract the appellees were desirous ■of entering into the practice of medicine at the town of Albion, named in said contract, and that said contract was made with that object in view; that they fully complied with the terms of said contract, and did enter upon the practice of medicine at'said town, and have ever since and now are engaged in the practice of medicine and surgery at said place ; that the appellant, in violation of said contract, has again located in said town of Albion, and has again engaged in the practice of medicine and surgery at said place in competition with the appellees, to their damage. Prayer for an injunction.
The appellant answered, admitting the signing of the agreement set out in the complaint, but says that at the time,
The court sustained a demurrer to this answer, and the appellant excepted.
Appellant then filed an additional paragraph of answer, which, in legal effect, is the same as the one above set out, except that it alleges, in addition to the allegations above, that the defendant, by reason of the failure and refusal of the plaintiff William T. Green to take and pay for said real estate, was compelled to and did sell the same at a sacrifice of $300, and that he received therefor the sum of $1,200 only, which was the highest and best price he was able to obtain therefor.
The court also sustained a demurrer to this paragraph of the answer, and the appellant again excepted.
The cause was tried by the court, who made a special finding of the facts proven, and stated its conclusions of law thereon, and thereupon entered a decree enjoining the appellant as prayed in the complaint. The errors assigned are :
First. That the court erred in sustaining appellees’ demurrer to the first paragraph of the appellants’ answer.
Second. That the court erred in sustaining appellee’s demurrer to the third paragraph of the appellant’s answer.
Third. That the court erred in its conclusions of law.
It is certainly the general rule that the consideration expressed in an instrument of writing may be varied or contradicted to almost any conceivable extent. Rockhill v. Spraggs, 9 Ind. 30; McMahan v. Stewart, 23 Ind. 590; Thompson v. Thompson, 9 Ind. 323 ; Levering v. Shockey, 100 Ind. 558.
The reason generally given for the rule is that the language with reference to the consideration is not contractual; it is merely by way of recital of a fact, viz., the amount of the consideration, and not an agreement to pay it, and hence such recitals may be contradicted. There is also a rule, so well known that it needs no citation of authority, to the effect that parol testimony can not be received to vary, contradict, or add to the terms of a written contract; and out of this grows the exception to the rule first above stated, that where the contract is complete upon its face, a stipulation as to the consideration becomes contractual, and where there is either a direct and positive promise to pay the consideration named, or an assumption of an encumbrance on the part of a grantee in a deed which, becomes binding upon its acceptance, then the ordinary rules with reference to contracts apply, and the consideration expressed can no more be varied by parol than any other portion of the written contract. Welz v. Rhodius, 87 Ind. 1; Hubbard v. Marshall, 50 Wis. 322; Singer Mfg. Co. v. Forsyth, 108 Ind. 334 ; Carr v. Hays, 110 Ind. 408 ; Diven v. Johnson, 117 Ind. 512; Conant v. National State Bank, 22 N. E. Rep. 250.
The answei’s of the appellant, to which the court sustained demurrers, contradict this agreement, and aver that the consideration for the agreement on the part of the appellant not to practice medicine within a radius of ten miles of the town of Albion was an agreement on the part of the appellee, William T. Green, to purchase certain real estate. We are of the opinion that the appellant can not be permitted to thus contradict the written agreement into which he has entered.
The averments in the answer, that the contract set out in the complaint was delivered to William T. Green conditionally, do not show that the contract was not executed, as a contract of that kind can not be delivered to one of the parties as an escrow.
It is to be observed that in this case the appellant has made no effort to rescind the contract; indeed, he has parted with the land which he alleges he agreed to convey to one of the appellees. He still has in his possession the one hundred dollars paid him by the appellees, and has never, at any time, so far as disclosed by the record, tendered it back.
We are of the opinion that both answers pleaded by the appellant in this case were bad, and that the court did not err in sustaining a demurrer thereto.
This case is to be distinguished from the ease of Thayer v. Younge, 86 Ind. 259. In that case the appellant paid appellee the sum of $150 for a practice worth $5,000 per year. In this case the value of appellant’s practice does not appear.
This made a case for injunctive relief, for without it the appellees had no remedy. The court stated as a conclusion of law upon the facts found that the appellees were entitled to an injunction enjoining the appellant from practicing medicine in violation of his contract. In this we do not think the court erred.
Judgment affirmed.