93 Ind. 591 | Ind. | 1884
Lead Opinion
— The complaint of the appellant is based upon a note and mortgage and is in the usual form. The first paragraph of the appellee’s answer avers that the note and mortgage were executed to appellant’s assignor for the unpaid balance of purchase-money of the real estate described in the mortgage; that the appellee William Creviston, by whom the note was executed, ivas a young man without knowledge of the value of “ saw-mill property; ” that appellant’s as
Wo think the paragraph is good, although it is very badly drawn. We place our decision on the ground that it shows an accord and satisfaction prior to notice of the assignment by the payee of the note. The note is not a negotiable one, and the defence pleaded is available against the assignee, because it is shown to have existed before notice of assignment.
The second and third paragraphs of the answer are substantially the same. It is alleged in each of them that while Hubbell, the payee, was still the holder of the note and mortgage, a suit was brought on one of the series of notes executed by the appellees and secured by this mortgage and assigned to one John Kenower; that Hubbell and the appellees were made parties to that suit; that a decree of foreclosure was rendered and sale made under it; that after the sale Hub-bell verbally agreed with the appellees, that if they would not redeem the land he would treat the money and property which they had previously paid and delivered to him as a full satisfaction of his claim and would release them from liability,and that he would protect himself by redeeming from the sale on Kenower’s decree and would not hold the appellants personally liable on any of the notes; that they did not redeem from the sale, but suffered title to be acquired by the purchaser.
These answers were good. The right of a debtor to redeem is a valuable one, and its surrender constitutes a suffi
There was no error in refusing to strike out the interrogatories propounded, on cross-examination, to Hubbell. The admissions of the holder of a non-negotiable note, made while he is still the holder of the note, are admissible against his assignee.
As to many of the questions sought to be reserved on the rulings excluding and admitting evidence, it is to be said that they are not properly reserved. In order to reserve questions upon such rulings, it is necessary to state specific objections to the trial court, and to carry into the bill of exceptions the -objections stated. City of Delphi v. Lowery, 74 Ind. 520 (39 Am. R. 98).
The second instruction given by the court does not state the law correctly, nor does the first upon the same subject given at the request of the appellees. The latter instruction is as follows: “ The defendant in this case admits the execution of the note sued on, but says that the same was not given for a valuable consideration; that the same was given for a saw-mill property which the assignor of the note herein sued on sold to the defendant, which said assignor fraudulently represented to be of th<? value of $2,300; that the assignor was an expert in saw-milling, and well knew the said mill was not worth $2,300, and- that the defendant was young and inexperienced in this business, and not conversant with the value of saw-mill property, and that he relied upon the statements of the assignor, and believed them to be true, and purchased said property, agreeing to pay therefor $2,300. Now, if the proof íd this case shows that such statements were untrue, and this defendant relied on them as true, and that
It is a settled general rule that representations of value do-not constitute fraud, and the case assumed by the instruction does not emerge from this rule. There were no confidential relations existing between the parties, and, in such cases, the general rule is that statements of value are regarded as mere expressions of opinion. Hartman v. Flaherty, 80 Ind. 472; Kennedy v. Richardson, 70 Ind. 524; Vawter v. Ohio, etc., R. R. Co., 14 Ind. 174; Chrysler v. Canady, 90 N. Y. 272, S. C., 43 Am. R. 166. Nor does it appear in the case assumed that the appellant’s assignor repi*esented himself as a specialist having a peculiar knowledge of saw-mills, nor does it appear that it was necessary for one to possess a special knowledge in order to enable him to judge of value. Neidefer v. Chastain, 71 Ind. 363 (36 Am. R. 198); Clodfelter v. Hulett, 72 Ind. 137. Judgment reversed.
Rehearing
On Petition for a Rehearing.
— We held in the original opinion that a surrender of a right to redeem was a valuable consideration for a contract, and we are well satisfied that this was correct. We cited in that opinion many cases showing that the right to redeem was a valuable one, and we deem it unnecessary to repeat them. It is, indeed, quite clear on principle that such a right is one of value. Counsel say: “ If we are not right, we beg the court, for information, and earnestly ask what was Hubbell to have for his unexecuted promise to give up the notes, or what did he get, or could he have acquired, under the alleged contract that was or could have been a mill’s consideration to him.” It is very easy to give the appellant’s learned counsel the inforniation they so much desire. The consideration which appellant got was all he asked, and wc qnderstand it to be perfectly well settled that where a party
It is not essential that the thing parted with be of value to the person who gets it; it is sufficient if the thing parted with is of value to the person who parts with it. This is an elementary principle which we think no court or law-writer has ever doubted. Addison says: “ It is sufficient, if there be any damage or detriment to the plaintiff, though no actual benefit accrue to the party undertaking.”- Addison Con., section 9. Ejrazee, C. J., speaking for the court, in Glasgow v. Hobbs, 32 Ind. 440, puts the rule in stronger terms, for it was said by him: “An inconvenience to the promisee constitutes a consideration to support a contract quite as effectual as a benefit to the promisor.” Chitty says: “ Unless it appear that the promisee incurred no detriment whatever, it need not be shown, in order to constitute a good consideration, that a benefit resulted to the promisor, from the performance by the promisee to the stipulated act.” 1 ChittyCon., 11 Am. ed.,31.
Petition overruled.