Bronnenberg v. Coburn
| Decision Date | 19 March 1887 |
| Docket Number | 12,317 |
| Citation | 11 N.E. 29,110 Ind. 169 |
| Parties | Bronnenberg v. Coburn |
| Court | Indiana Supreme Court |
From the Madison Circuit Court.
The judgment is, affirmed, with costs.
M. S Robinson, J. W. Lovett and W. A. Kittinger, for appellant.
C. L Henry, H. C. Ryan and E. P. Schlater, for appellee.
The first paragraph of appellee's complaint may be summarized as follows: In September, 1883, one Susan Nelson, a sister of appellant, was found dead, in Vigo county. It was supposed that she had been murdered, but by whom it was not known. In November of that year, appellant, who lived in Madison county, agreed and contracted with appellee to pay to him the sum of $ 500 as a reward and compensation, if he would undertake, and devote his time and services to, the arrest of the person or persons who caused the death of said Susan Nelson, and the discovery of such information as would lead to the conviction of such person or persons; said amount to be paid whenever such person or persons should be convicted. In pursuance of "said contract and agreement," appellee engaged in said work and labor, devoted his time and services thereto, caused the arrest of one Perry Manis as the person who had committed the murder, discovered and brought to light the information, witnesses and evidence which led to the discovery of the guilt of Manis, and to his conviction upon a charge of having murdered said Susan Nelson, of all of which appellant had notice; that, though often requested, appellant has refused to pay the amount agreed upon, and that the same remains due and unpaid, etc.
The second paragraph of the complaint alleges a general offer by appellant of a reward of $ 500 for the detection and conviction of the murderer of Susan Nelson, an acceptance of that offer by appellee, and the arrest and conviction of the murderer Manis, through his efforts and services, etc.
The technical objections urged against that paragraph are not available, for two reasons:
First. They are not well taken.
It is contended that the paragraph is defective, because it is not alleged therein that the amount of the offered reward is due and unpaid. It is averred therein that appellant offered and promised to pay as a reward the sum of $ 500 to any person or persons who would detect and arrest, etc., and who would discover and furnish such information as would lead to, and result in, the trial and conviction of the person guilty of having caused the death of Susan Nelson; that appellee performed the services, and had Manis arrested and convicted as such murderer, etc., and that after the services were performed by appellee, etc., appellant, although requested to pay the amount to appellee, has refused, and still refuses, to pay, etc.
Under these several averments, it was the duty of appellant to pay upon the completion of the services by appellee. The amount then became due unless there was some stipulation to the contrary. No such stipulation was shown. Wagoner v. Wilson, 108 Ind. 210, 8 N.E. 925; Jaqua v. Cordesman and Egan Co., 106 Ind. 141, 5 N.E. 907.
Second. The court practically withdrew the second paragraph of the complaint from the jury, as we shall see hereafter.
We pass to the alleged error of the court below in overruling appellant's motion for a new trial. First, in the order of discussion by counsel, it is contended that the court erred in giving to the jury number one of its instructions. That instruction is, in substance, that this is an action by the plaintiff to recover a judgment against the defendant for services rendered by plaintiff in securing the arrest and conviction of the murderer of Susan Nelson; that the plaintiff, not claiming to recover on the second paragraph of his complaint, bases his right to recover in the action upon a contract or agreement made between the plaintiff and the defendant, whereby the defendant agreed and promised to pay the plaintiff a certain sum of money as a reward for, and upon the condition that he would render said services, and thereby secure the arrest and conviction of the murderer of Susan Nelson, averring in the complaint, that, in pursuance of said promise and agreement, he rendered the services and secured the arrest and conviction of the murderer of Susan Nelson; that the complaint was answered by a general denial, which threw the burden of proof upon the plaintiff, and that, in order for him to recover, he would have to prove by a preponderance of the evidence, the material facts stated in the complaint; that the burden was thus upon him to prove by such preponderance that the agreement or contract was made between the plaintiff and defendant, and that the plaintiff performed his part of the contract according to its terms; that if the jury believed from the evidence that the plaintiff had so proved the material facts, the verdict should be for him, otherwise for the defendant.
This instruction, as will be noticed, practically eliminated from the...
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