Bement v. May

• Decision Date: 23 May 1893
• Docket Number: 16,615
• Citation: 34 N.E. 327,135 Ind. 664
• Parties: Bement v. May
• Court: Indiana Supreme Court

34 N.E. 327

135 Ind. 664

Bement v. May

No. 16,615

Supreme Court of Indiana

May 23, 1893

Reported at: 135 Ind. 664 at 680.

From the Vigo Circuit Court.

The judgment is affirmed.

T. A Nantz, T. Haymond, W. Eggleston, J. L. McMaster, A. P Stanton and J. E. Scott, for appellant.

G. W Faris and S. R. Hamill, for appellee.

OPINION

McCabe, J.

This was a suit brought in the court below by appellant against appellee, to review a judgment alleged to have been recovered theretofore in the same court by appellee against appellant.

A demurrer was sustained to the complaint to review, which ruling is the only error assigned here.

The errors assigned in the complaint to review are:

1. That the complaint did not state facts sufficient to constitute a cause of action.

2. Error in overruling defendant's demurrer to the complaint.

3. Error in overruling defendant's motion for change of venue from the county.

3 1/2. Error in permitting plaintiff to amend complaint after the close of the evidence.

4. Error in overruling defendant's motion for a new trial.

5. Error in overruling defendant's motion in arrest of judgment.

The third and third and a half assignments of error are not well assigned, because they are but causes for a new trial, and if not embraced therein, then they are waived precisely the same as if appellant had appealed directly to this court for the correction of the supposed errors in said proceedings and judgment, instead of seeking to correct them by filing a complaint to review in the court where they are alleged to have been committed. American Ins. Co. v. Gibson, 104 Ind. 336, 3 N.E. 892; Baker v. Ludlam, 118 Ind. 87, 20 N.E. 648.

The complaint sought to be reviewed is substantially as follows: "That heretofore, to wit, on the day of April, 1891, said plaintiff had a valid claim for the sum of $ 12,000 against said defendant, which said claim and demand accrued to said plaintiff because of certain false and fraudulent representations that had theretofore been made by said defendant to said plaintiff in reference to certain real estate that had theretofore been transferred by said defendant to said plaintiff, and because of the fact that theretofore, in said real estate transaction, the said defendant had promised and agreed to convey to the plaintiff certain real estate, which he had failed and refused to do, but had fraudulently conveyed the same to other persons than this plaintiff. The plaintiff avers that on said day the said defendant proposed to pay, in full settlement and adjustment of said claim, the sum of $ 4,500, which said proposition the said plaintiff, on said day, accepted, but that thereafter, and ever since, the said defendant has refused to pay said sum, although this plaintiff has demanded payment of the same, and it is now due and wholly unpaid. Wherefore plaintiff prays judgment for the sum of $ 5,000 and all proper relief."

After the close of the evidence, the appellee was permitted to amend her complaint so as to show that in said real estate transaction plaintiff conveyed to defendant real estate of the agreed value of $ 24,000, and that defendant was to pay plaintiff therefor in cash and other real estate, and that the transaction was consummated. And that plaintiff, believing that she had been wronged and cheated, in that defendant had failed to convey to her certain of said real estate of the value of $ 6,000, so to be by him conveyed to her, but had conveyed it to another, and that she had preferred a claim against defendant for such wrongful conveyance and for falsely representing the values of the real estate so conveyed and to be conveyed to her, her claim therefor being for $ 10,000. In all other material respects the amended complaint was the same as the original.

Appellant's counsel refer us to Jarvis v. Sutton, 3 Ind. 289, in support of their contention that the complaint is bad because it does not show a sufficient consideration for the alleged compromise. There was no compromise involved in that case. The suit was founded on an alleged trespass, and the defense relied on a contract void for want of consideration. All that is said in the opinion about a compromise was outside of the case, and not authority.

They also cite Smith v. Boruff, 75 Ind. 412, where this court says, at page 416: "That there must be at least a colorable ground of a claim, in law or in fact, to sustain an executory contract, given as a compromise of it. Can this be the case when the holder of a note has himself received payment thereof, and, notwithstanding such payment, insists on holding on to a security and to the note secured, the helpless debtor protesting meanwhile that payment has been made? It is not laying down too stringent a rule, in such a case, that the creditor shall be held to have knowledge of payments that he has received, and that he can not, by denying such payments, create a controversy which will support a promise to pay him a second time, in whole or in part, as the price of doing that which the law, and equity and good conscience, require that he shall do without further compensation."

There are no facts alleged in the complaint, as amended, that bring it within the rule announced. On the contrary, it is alleged, in substance, that plaintiff and defendant had made a trade, by which plaintiff had conveyed to defendant real estate of the agreed value of $ 24,000, for and in consideration of which defendant had agreed to convey to her certain other real estate and pay the balance in money; that certain of the real estate which defendant was to convey to plaintiff, he had failed and refused to so convey, but had conveyed it to another, and that defendant made certain false and fraudulent representations to her concerning the value of the real estate which he was to convey to her, in all of which she claimed and believed he had damaged her $ 10,000, and was demanding its payment. And that defendant proposed to pay to her, in full settlement of said claim and demand, $ 4,500, which plaintiff accepted, and that defendant had ever since failed and refused to pay said $ 4,500, which amount is now due and wholly unpaid.

There is not a word in this complaint about the demand, either of the $ 10,000 or the amount agreed on as a compromise thereof of $ 4,500, ever having been paid or settled in any way otherwise than by the compromise alleged. Warey v. Forst, 102 Ind. 205, 26 N.E. 87, cited also by appellant, has no application, because, like the other, it was a compromise founded on a claim absolutely void in law.

Wheeler v. Hawkins, Assignee, 101 Ind. 486, had no question of compromise in it and has no bearing on this case.

The complaint, as amended, comes very near showing, if it does not show, that the claim compromised was a valid cause of action, which we need not and do not decide, because "the prevention of litigation is not only a sufficient but a highly favored consideration, and no investigation into the character or value of the different claims submitted will be entered into for the purpose of setting aside a compromise, it being sufficient if the parties entering into the compromise thought at the time there was a question between them." Thompson v. Nelson, 28 Ind. 431; Wray, Admr., v. Chandler, Guar,, 64 Ind. 146; Home Ins. Co. v. McRichards, 121 Ind. 121, 22 N.E. 875; Smith v. Smith, 106 Ind. 43, 5 N.E. 411.

The complaint was clearly good, either on demurrer or on the assignment of error that it was insufficient in the complaint to review.

The next question made by appellant's counsel is, that the evidence is not sufficient to support the verdict in the judgment sought to be reviewed. We have examined the evidence and find that it was somewhat conflicting, but that the preponderance thereof is on the side of the verdict. However, if it appeared on paper, here, to preponderate against the verdict, still we could not reverse for that reason. We can only reverse when the facts in evidence and the inferences which the jury might draw therefrom tending to support the verdict, unopposed, is not sufficient to establish its truth.

The next question made relates to the exclusion of certain evidence contained in an admitted affidavit for a continuance. It was attempted to be shown in the bill of exceptions what parts of the affidavit were stricken out by reference to the page and line of the affidavit where the same began, and the page and line where the part stricken out ended, without embodying the language in the bill of exceptions.

This court has no means of knowing what language was intended to be stricken out, even though it should happen that the paging and lining of the affidavit before it was copied into this record should be the same as the paging and lining thereof now appear in this record. But we know that they were not the same, because the bill of exceptions, as copied into this record, says that the rejected language ended at line 31, page 49, at the word agreement. Now, we know that there could not have been 49 pages in the affidavit. Hence, it clearly appears that that paging and lining could not have been in the original bill of exceptions, and, therefore, we have nothing but the clerk's statement as to what part was stricken out. The proper way would have been to have embodied in the bill of exceptions the language stricken out of the affidavit. No question is, therefore, presented as to that ruling.

The next complaint is made of the refusal "to permit appellant to testify that he had not refused to convey the 4th street property to the plaintiff but had conveyed the same to another at the request of the plaintiff herself."

The question was asked appellant, "What, if anything, was said by you at the time when you first met...