Baughan v. Brown

Decision Date07 February 1890
Docket Number14,708
Citation23 N.E. 695,122 Ind. 115
PartiesBaughan et al. v. Brown, Administrator
CourtIndiana Supreme Court

From the Delaware Circuit Court.

Judgment affirmed, with costs.

T. B Redding, A. C. Silverburg and R. S. Gregory, for appellants.

G. H Koons, J. Brown and W. A. Brown, for appellee.


Coffey, J.

This cause is in this court for the second time. The issues as formed in the circuit court are fully set forth in Baughan v. Baughan, 114 Ind. 73, 15 N.E 466. While the appeal was pending in this court the appellee John Baughan died intestate, and when the cause was returned to the court below, the present appellee, William A. Brown, as administrator of his estate, was substituted as plaintiff. The cause was again tried upon the issues as formed during the lifetime of John Baughan, resulting in a verdict and judgment for the appellee.

The questions involved in this appeal relate to the action of the circuit court in overruling the appellants' motion for a new trial.

It is contended by the appellants that the verdict of the jury is not supported by the evidence and is contrary to law.

The evidence on behalf of the appellee consisted of a written contract executed between John Baughan, the deceased, and William Baughan, appellant, with the other appellant, James Baughan, as surety, by the terms of which the said William Baughan agreed with the deceased, in consideration of five hundred dollars, and the household goods owned by him, to take care of, maintain and support the deceased during his lifetime, in a good, careful manner, and after his death to give him a decent burial and pay the expenses thereof. It was further stipulated that in the event deceased should own any other property at the time of his death, the appellant, William Baughan, should have such property in addition to the five hundred dollars and the household goods.

The evidence tends to show that the deceased, in discharge of his obligation to pay the five hundred dollars provided for in the contract, assigned and delivered to the wife of the appellant William Baughan two promissory notes, amounting to five hundred dollars, with some interest thereon, which the appellant negotiated and sold to a bank, and realized therefor from four hundred and sixty to four hundred and eighty dollars. The evidence further tends to prove that after the deceased had remained with the appellant William Baughan something over three years, the wife of the said William refused to keep him longer, when he was removed to the house of one Malissa Miller, where he died during the pendency of this suit.

The evidence on behalf of the appellants tends to prove that the contract between the parties had, by mutual agreement, been rescinded and abandoned; and that the deceased had made a new contract with the wife of the appellant William Baughan for his support, under the terms of which the two notes, amounting to five hundred dollars, were assigned to her, and upon this theory the defence in the case was made.

The evidence of the deceased was taken on a former trial of this cause, and was read in evidence on the last trial, in which he denied that the contract had been rescinded. There are, also, some circumstances in the case in conflict with the theory of the defence, among which is the fact that the contract above referred to was left with one Scott, by the mutual agreement of the parties, for safe-keeping, and was still there uncalled for at the time of the commencement of this suit. All this evidence, as well as the circumstances attending the case, was doubtless considered and duly weighed by the jury. It was their special province to determine what weight it should have in arriving at their verdict. We can not say that their verdict is wholly unsupported by the evidence.

Where there is some evidence tending to support the verdict, or the finding of the court, this court will not reverse the judgment on account of overruling the motion for a new trial, assigning as cause, that the verdict or finding is not supported by the evidence.

On the trial of the cause the court permitted the appellee to read in evidence the two notes assigned by the deceased and delivered to the wife of appellant William Baughan and the appellants excepted.

The theory of the appellee was that said notes were assigned to the wife of the appellant William Baughan with his consent, and accepted in discharge of the obligation to pay five hundred dollars for the maintenance of the deceased as provided in the written contract between the parties.

The notes, with the endorsements thereon considered in connection with the other evidence in the cause, tended to support the...

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