Williams v. Jones

12 Ind. 561 | Ind. | 1859

Perkins, J.

Suit upon the following agreement:

“ #900. On or before the 1st day of April next, I promise to assign over and indorse to Jones Brothers Sf Go., 900 dollars in cash notes, drawing 6 per cent, interest, on good, solvent men, resident in Madison county, Indiana, all waiving relief from valuation laws of said state, and then due, in consideration of their receipting to Oran Carver full payment of the judgment which they recovered against him in the District Court of the United States for the district of Indiana, at the May term thereof, 1855, and surrendering up to me the notes which they hold as collaterals, executed by John Harris to said Carver. B. W. Williams. December 22, 1855.”

W. R. Pierse, for the appellant. M. S. Robinson, for the appellees.

' The complaint averred that the receipt was executed and the collaterals delivered, but that the notes were not assigned over.

Answer, denying the execution of the receipt and the delivery of the collaterals.

On the trial, the Court permitted parol evidence of the receipt. This was error. If the receipt was upon the record of the judgment, the record, or a transcript of it, should have been produced. If the receipt was not upon the record, but was upon a separate paper, and delivered to the defendant, notice should have been given to him to produce it on the trial, and on his failure to do so, the contents might have been proved by parol.

In the assessment of damages, the Court held that they should be for the sum expressed on the face of the written agreement. According to the case of Parks v. Marshall, 10 Ind. R. 20, and the authorities there cited, the value of the notes to be assigned, as found by a jury, would be the measure of damages.

Per Curiam.

The judgment is reversed with costs. Cause remanded for another trial.