36 Ind. App. 262 | Ind. Ct. App. | 1905
Appellants brought this action against the appellee to recover damages for the breach of a contract to sell to them 2,000 cases of tomatoes during the packing season of 1901. The first and second paragraphs of the complaint were filed April 12, 1902. October 7, 1902, appellants filed an affidavit for attachment and garnishment, naming the Van Camp Packing Company as gar
In support of the allegations of the affidavit Mr. Korbly testified to a conversation between himself and appellee at appellee’s place of business in Sellersburg, Indiana. After he had testified in chief and had been cross-examined, the court struck out his testimony on the ground that the conversation was privileged and could not be given in evidence against appellee. The action had been commenced and was pending at the time testified to by Mr. Korbly. The purpose of the visit to Mr. Ouddy is stated as follows: “Mr. Fortune and myself went to Sellersburg to see Mr. Cuddy, for the purpose of securing a settlement of the claims of Schnull & Co.' — either the money or tomatoes. We met Mr. Cuddy at Sellersburg and told him the purpose of our visit. Mr. Cuddy said he did not owe Schnull & Co. anything, and he also said that there was a short pack that year [1901], and that he did not think
The exact words which appeared on the envelope as spoken by Mr. • Ouddy are as follows: “I will assign my property to my wife, or get rid of it, and I will have * * * little left if the court goes against me * * * and I.
On reexamination Korbly testified: “The statement of Mr. Cuddy in reference to the transfer of his property to his wife, or when he said he would get rid of his property, was made after all reference to the $500 proposition and expenses. We had finished talking. Cuddy made the proposition of $150 after we made the proposition of $500 in settlement, and that ended the negotiation. As soon as he made the $150 proposition we quit. Uo further proposition was made with reference to the money proposition. Then it was that I said there was nothing for us to do but go ahead and fight the suit.”
It is well settled that an offer by a party to pay a sum of money by way of compromise of an existing controversy is not .to be used as evidence against him. One may buy his peace, and his offer made by way of compromise is not admissible as an admission in a civil action. It is clear, therefore, that the evidence of offer of $150 by appellee to appellants for settlement of a pending suit was not admissible. But it is also well settled that admissions or statements of independent facts not made with a view to compromise, although made during the negotiations, are not so privileged. 1 Elliott, Evidence, §646.
In Gerrish v. Sweetser (1826), 4 Pick. 374, 377, after
Judgment reversed, with instructions to sustain appellants’ motion for a new trial, and for further proceedings not inconsistent with this opinion.