Coapstick v. Bosworth
| Citation | 22 N.E. 772,121 Ind. 6 |
| Decision Date | 05 November 1889 |
| Docket Number | 13,739 |
| Parties | Coapstick v. Bosworth |
| Court | Supreme Court of Indiana |
From the Clinton Circuit Court.
Judgment affirmed, with five per cent. damages, and costs.
J. C Suit and J. Combs, for appellant.
J Claybaugh, for appellee.
This was a suit upon a promissory note, which reads as follows:
Issue having been joined, the cause was submitted to the court for trial, and a finding made for the defendant.
The appellant then filed a motion for a new trial, which the court overruled, and he saved an exception. The court then rendered judgment upon the finding for the amount due upon the note.
Before entering upon the trial the appellant made a motion for a continuance, which was overruled, and an exception properly reserved.
There are but two errors assigned:
1. The court erred in overruling the motion for a continuance.
2. The court erred in overruling the motion for a new trial.
Both errors present the same question--the competency of certain evidence which the appellant offered to introduce.
The testimony offered by the appellant was, in substance, as follows: That at the date of the execution of the note the parties were tenants in common of a certain tract of land, the appellant holding title to three-fourths thereof and the appellee to one-fourth thereof; that, at the date on which the note was executed, and contemporaneous therewith, it was agreed between the parties that the appellee should convey her one-fourth interest to the appellant, and that in consideration thereof he should pay her thereafter an annuity not to exceed forty dollars, which should be given her in goods, provisions, or money from time to time as she might need it during her natural life, but that in no event should said payment exceed forty dollars per annum; that one Shields, a notary public, was called upon to write out and take said Mary's acknowledgment to the deed for her said interest in the land; that at his suggestion the note sued on was drawn up and signed, for the purpose of securing the appellee in the payment of said annuity, and for no other or different purpose; that it was agreed and understood at the time of the execution of the note and deed, that no part of said note was ever to be paid, except in the manner aforesaid, and that it was not to be paid at all, even as an annuity, after the appellee's death; that no other or different consideration was to be paid to the appellee for her interest in said land.
It is well settled in this State that the true consideration may be shown for a promissory note or other obligation by parol evidence; and if there was no consideration, or if the consideration has failed, parol evidence may be given to establish the fact.
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