21 Ind. 227 | Ind. | 1863
The appellees, who were the plaintiffs, sued Rigsbee, alleging in their complaint that the plaintiffs are the surviving partners of the late firm of Jacob Mull & Co., and that on January 1, 1861, the defendant executed to said firm a promissory note in this form :
“ $271.39. Manilla, Indiana, January 1, 1861.
“One day after date I promise to pay to the order of Jacob Mull & Co., 239 dollars and 39 cents, value received, without any relief whatever from appraisement laws.
“'Andrew J. Rigsbee.”
That in drafting said note a mistake occurred in the written portion of it in this, that the note is made to read “ 239
Proper issues having been made, the cause was submitted to the Court, who found that the note was executed on the 1st of January, 1861; that it was intended and meant to be for 271 dollars and 39 cents, and the Court also found for the plaintiffs 292 dollars and 17 cents; and, thereupon, rendered final judgment as follows: “It is, therefore, considered by the Court that the plaintiffs do recover of the defendant the said 292 dollars and 17 cents, so found as aforesaid, together with their costs, &c.”
Defendant moved for a new.trial on two grounds: 1. The judgment is not sustained by the evidence. 2. It is contrary to law; but his motion was overruled and he excepted.
This decision is said to be erroneous; because, as is alleged, the Court had no authority to reform the note in the mode indicated in the proceedings. The code says: “ “When the plaintiff desires to correct mistakes in title papers, or other instruments of writing, a separate action may be brought therefor, or mistakes in such title papers or other instruments of writing may be corrected in any other action, when such correction would be essential to a complete remedy.” 2 R. S. p. 43, sec. 71. Promissory notes are very clearly embraced within the phrase, “instruments of writing,” as used in this provision, and, under it, may be corrected; but it is insisted that the Court should have first entered.up a judgment re
Per Curiam. — The judgment is affirmed, with 5 per cent. damages and costs.