30 Ind. 391 | Ind. | 1868
The material question in the case is, does the evidence sustain the finding of the court? The fourth paragraph of the complaint is founded on the note for five hundred dollars, given by the appellant to Sears. It admits the receipt by Sears of the two notes on Street, but alleges that they were only received as collateral security for the appellant’s note. But it is insisted by the appellant that they were received by Sears in satisfaction, and a3 an abso
Here the evidence shows that Sears had instituted a suit against Stevens on the note for five hundred dollars, and whilst it was pending, Stevens called on Sears, who then resided in Illinois, and urged him to take the notes on Street. Sarah Sears, who was present at the interview, testifies that Stevens urged her father to take the Street notes, and told him if he went on with the suit then pending against him, Stevens, it would ruin him. Sears told Stevens, he was not much acquainted with Street, and did not like to take the notes. Stevens continued to urge him to take them, saying, “that two is better than one;” and Seal’s at last agreed to take the notes, “if Stevens would stand good for them,” which Stevens agreed to do, aud then told Sears not to push Street on the notes, that he believed Street was honest and would pay. The notes oil Street were not then delivered to Sears. The parties left, and went to Nathan Dresser’s, near by. Mrs. Dresser testifies that the parties (Stevens aud Sears) called at her house and asked for pen and ink and made an assignment of the notes. [An assignment was written on each of the notes by Stevens, buthe did not sign, either of them.] Sears' told Stevens that he did not consider Street good. Stevens insisted that he was, but repeated several times that if Street was not good, he, Stevens, was, aud would make the notes good-, that if Street did not pay them, he would. The notes were then delivered to Sears. Wo think this evidence clearly justifies the conclusion that the notes on Street were not received as an unconditional payment of the five hundred dollar note, but would so operate if paid.
Blit we cannot sustain the finding of the court under the fourth paragraph of the complaint, for another reason. The evidence shows that the Steveus note was in the hands of Sears’ attorney at the time Sears received the notes on Street, and that the attorney, subsequently, on the order of Sears, delivered it up to Steveus. It was not produced on the trial. No notice had been served on Stevens to produce it, and the court, therefore, excluded parol evidence of its contents. The general denial was pleaded, and the plaintiff could not recover on the note without proper evidence of its contents. It follows that the evidence does not sustain the finding-, under the fourth paragraph, of the complaint.
And we do not think it is sufficient to sustain the charge of fraud under the fifth paragraph, and hence the judgment must be reversed.
There is nothing in the objections urged to the complaint.
The judgment is reversed, with costs, and the cause remanded for a new trial.
