Depuy v. Clark
| Decision Date | 09 June 1859 |
| Citation | 12 Ind. 367 |
| Parties | Depuy v. Clark |
| Court | Indiana Supreme Court |
From the Wabash Court of Common Pleas.
The judgment is affirmed with 1 per cent. damages and costs.
J. U Pettit, C. Cowgill and J. M. Wheeler, for appellant.
J. D Conner and G. E. Cordon, for appellee.
Action by the appellee against the appellant to recover the amount of a promissory note made by one Volney L. Williams to the plaintiff, for the sum of 643 dollars 48 cents, dated October 10, 1853, and payable one day after date, alleged to have been placed in the hands of the defendant by the plaintiff as collateral security for the payment of an account of 50 dollars, due from the plaintiff to the defendant. Averment that the defendant had received certain property and some money from Williams, on the note, and that he had surrendered up the note to Williams, taking the note of Williams payable to himself for the balance, amounting to 439 dollars 77 cents. The claim was set out in three several paragraphs of the complaint. There was a demurrer filed to the complaint for misjoinder of causes of action, which was overruled. This decision we cannot revise, if wrong. 2. R. S. p. 38, § 52.
There were demurrers filed to two of the paragraphs of the complaint, but as none of the statutory causes of demurrer were assigned, they were correctly overruled. The State v. Leach, 10 Ind. 308.--Lane v. The State, 7 id. 426.
The defendant answered in several paragraphs, to which replications were filed, and the cause was tried by a jury. Verdict for the plaintiff for 577 dollars 12 cents, on which judgment was rendered, over a motion for a new trial.
By a bill of exceptions setting out all the evidence, it appears that on the trial the plaintiff proved by a witness that he started west in November, 1853; and that soon after he started, the defendant told the witness that he had loaned the plaintiff 60 or 65 dollars, and had taken of him a note on Williams, his half-brother, for some 607 dollars, as security; and that he had taken an assignment to the effect that he was to repay the money, or the Williams note was to be his. He said, if Clark did not pay him by a certain time, the note was to be his; that he had let Clark have the money to go west to see his brother, Williams, to get money to redeem his land from a mortgage, and Clark did not return for fourteen months.
By said Volney L. Williams, he proved that in May, 1854, the defendant presented to him, in Illinois, the note in question, and that he settled it by giving the defendant a buggy and harness, at 225 dollars 300 dollars in money, and his note for the balance of 439 dollars 77 cents, payable in six months, to the defendant. The other note was given up to Williams.
Williams was solvent at the time, and worth considerably more than would pay all his debts. He did not represent to the defendant that he could not make the money off him by suing, or that he was embarrassed.
This is the substance of the plaintiff's testimony, except some testimony tending to show a demand before suit brought.
During the examination of one of plaintiff's witnesses, the defendant offered to prove by him that the plaintiff had offered to sell the Williams note to the witness for the same amount that defendant gave for it, 85 dollars, to which proof plaintiff's counsel objected, on the ground that it formed no part of the agreement between the parties to the suit; and the objection was sustained, and the defendant excepted.
The objection was not based upon the ground that the defendant could not go out of a proper cross-examination for the purpose of establishing facts necessary to sustain his defense, and that, if he wished to prove such facts, he must make the witness his own, and introduce him for that purpose. The objection was simply that the testimony was irrelevant. We cannot say, however, that the ruling was wrong. From all the evidence then before the Court, the testimony did not appear to be relevant. Counsel did not even undertake to afterwards show its relevancy. The ground assumed in the argument is, that if Clarke offered the note to the witness for 85 dollars, it showed what he thought it to be worth, and the probability of his having offered and sold it to Depuy for the same sum. But at that time there was no evidence before the Court on the subject of the purchase of the note by Depuy, for the sum of 85 dollars, or otherwise. The offering of a piece of property to one man for a certain sum, would not ordinarily have any tendency to prove a sale of it to another man for the same sum.
If, after the defendant had introduced his proof to establish a sale of the note by the plaintiff to the defendant for 85 dollars, the disparity between the amount paid and the amount of the note, rendered the transaction improbable, or the testimony doubtful, and if the testimony offered became thereby admissible (a question which we do not decide), as showing the value put upon the note by Clark, and thus removing the apparent improbability of the transaction, the proof should have been then offered.
It is said, in note 326 to Phillip's Evidence, that
One of the grounds of defense was, that the note was unconditionally sold and transferred by the plaintiff to the defendant.
The defendant proved by a witness, that a few days before Clark went west and was so long gone, witness was in defendant's office, when the plaintiff came in and proposed to sell the defendant a note on a man named Williams for 600 or 700 dollars; defendant said he did not care about buying it. Clark asked 100 dollars for it; defendant said he could not give that. Clark was owing defendant a doctor's bill, and defendant proposed to give Clark the account against him, and cash, to make, in all, 85 dollars. The account was between 20 and 30 dollars. Clark said he would take it, and the money was paid to him, and the note was transferred to the defendant, and the plaintiff went out. Afte...
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