20 Ind. 389 | Ind. | 1863
The appellee, who was the plaintiff, sued Snyder upon a written contract, which is as follows:
“This agreement entered into this, 23d of December, 1857, between Aaron Snyder and Benjamin Koons, witnesseth: that Snyder agrees to furnish to Koons 400 head of good corn-fatted hogs, to average 200 pounds net weight; said Snyder agrees to deliver said hogs between the 15th and 25th of December, 1858, in the city of Bichnond, Wayne county, Indiana; said hogs to be delivered alive and weighed alive, at some suitable place of weighing, and one-fifth to be deducted in order to ascertain the net weight, as above required. In consideration of which Koons agrees to pay Snyder 5 dollars and 25 cents per hundred net weight for said hogs when delivered. Witness our hands and seals this 23d of December, 1857 “ Aaron Snyder, [seal.]
“Benjamin Noons.” [seal.]
The complaint avers that the defendant did not deliver said hogs, or any part thereof, within the time or at the place mentioned in the contract, although the plaintiff was then
Defendant answered: 1. By a denial. 2. That at or before the making of the contract, and as a part thereof, the plaintiff verbally agreed to furnish the money to purchase the hogs to defendant, and afterwards failed or refused to do so; wherefore the defendant failed to deliver the hogs, &c.
To this second paragraph the plaintiff demurred. The Court sustained the demurrer, and the defendant excepted. This exception, it seems to us, is not well taken. The contract before us appears, on its face,>to be complete. Its stipulations render it effective between the parties, and, in accordance with its legal effect, the money was not to be advanced in payment for the hogs, or otherwise, until they were delivered. And that being the case, the answer is defective, because it sets up a verbal* contemporaneous agreement varying the legal effect of the written contract. 2 Phil. Ev., 4th Am. Ed., p. 665, note 444.
The issues were submitted to the Court; who. found' for the plaintiff, and, having refused a new trial, rendered judgment, &c.
The cause assigned for a new trial is that the finding is unsustained by the evidence. We are not inclined to adopt that conclusion. The evidence is*upon the record. We have carefully examined it, and are of' opinion that the weight of it sustains the finding of the Court.
.The judgment is affirmed, with 3 per cent, damages and costs.
