Bailey v. Miller

• Decision Date: 09 March 1910
• Docket Number: 7,305
• Citation: 91 N.E. 24,45 Ind.App. 475
• Parties: BAILEY, ADMINISTRATOR, v. MILLER ET AL
• Court: Indiana Appellate Court

91 N.E. 24

45 Ind.App. 475

BAILEY, ADMINISTRATOR, v. MILLER ET AL

No. 7,305

Court of Appeals of Indiana

March 9, 1910

From Probate Court of Marion County (claim 8,894); Frank B. Ross Judge.

Action by Joseph Miller against Andrew J. Bailey, as administrator of the estate of Jehu Miller, deceased, and another. From a judgment for plaintiff, said administrator appeals.

Reversed.

Newton M. Taylor, for appellant.

Holtzman & Coleman, for appellees.

OPINION

ROBY J.

Appellee Miller filed a claim against the estate of appellant's decedent, and had a verdict for $ 400, upon which judgment was rendered.

The assignment of error based upon the overruling of appellant's motion for a new trial best presents the questions upon which the case depends. Appellant's decedent sold to the appellees the right to use a patent for the construction of a cement cistern. He was not the inventor, but had purchased the patent for the State of Ohio, and sold it for Lucas county, executing a written assignment therefor. The instrument contained a clause as follows:

"I further guarantee to said Sylvester F. Wilson peaceable possession of the rights to said patents and inventions in said Lucas county, and all the expenses which may be incurred for suits or infringements or for ousting or keeping out present contractors within said territory."

The basis of liability averred was that decedent and also appellant failed to give said assignee peaceable possession of said territory, and that a person named was, at the time of the assignment, using said patents in the county, and continued to use them thereafter. The damages assessed seem to have been estimated with relation to the profit on sixty cisterns put in by the decedent's son-in-law, the person before referred to, after assignment. Appellant insists that the contract heretofore set out is void on its face, for the reason that the word "guarantee," in the connection in which it is used, means nothing whatever. We are not able to agree with this insistence. The word has an established legal meaning, and ordinarily implies an undertaking by one person that another will perform some engagement. 4 Words and Phrases, 3179. It was not used in this sense in the instrument under consideration as the context shows. It by no means follows that it is meaningless. A guaranty is any thing that assures or makes certain. Thesaurus Dict., 946. The act of making certain. Standard Dict.

The word in this connection is an assurance of the validity of the assignment then made, and implies an undertaking to perform the things specified: (1) To deliver peaceable possession of the right...