Dickson v. Conde
| Decision Date | 29 April 1897 |
| Docket Number | 18,082 |
| Citation | 46 N.E. 998,148 Ind. 279 |
| Parties | Dickson v. Conde et al |
| Court | Indiana Supreme Court |
Rehearing Denied June 24, 1897.
From the Marion Superior Court.
Reversed.
W. W Herrod and W. P. Herrod, for appellant.
A. P Stanton and A. F. Denny, for appellees.
Appellant brought this action against appellees upon a written contract. Appellees' separate demurrers to the complaint were sustained, and appellant refusing to plead further, judgment was rendered upon demurrer in favor of appellees.
These rulings of the court have been assigned as error.
It is shown by the complaint that prior to April 29, 1876, appellant and the appellee, Wallace Dickson, were doing business as partners under the firm name of C. Dickson & Co. That on said day, by contract in writing, appellees purchased of appellant his entire interest in the stock, good will, and accounts of said firm of C. Dickson & Co. for the consideration of nine thousand dollars, and assumed and agreed to pay the indebtedness of said firm. That before the sale to appellees a judgment had been recovered for $ 5,786.33 by the Indianapolis Cotton Manufacturing Company against said firm, which was on the day of said sale pending on appeal in this court, and was counted and treated as an indebtedness of said firm in said sale, which said appellees were to pay. As a part of said contract it was agreed that in case the appeal to the Supreme Court from said judgment was decided in favor of C. Dickson & Co., then appellees promised and agreed to pay one-half of the amount of said judgment to appellant. That said judgment was reversed in 1878 and remanded to the court below where the case was dismissed. That the one-half of said judgment, $ 2,893.16, with interest thereon is due and unpaid. The written agreement is filed with and made a part of the complaint.
The contract, as sued upon, is not, as claimed by appellees, an undertaking "to answer for the debt, default, or miscarriage of another." The contract of appellees is to pay a part of their own debt to appellants to the creditors of the firm, and was not therefore within the statute of frauds. Such contracts may be enforced if not in writing. Wolke v. Fleming, 103 Ind. 105, 2 N.E. 325, and cases cited; Turpie v. Lowe, 114 Ind. 37, 38, 15 N.E. 834; Bateman v. Butler, 124 Ind. 223, 225, 24 N.E. 989; Boruff v. Hudson, 138 Ind. 280, 283, 37 N.E. 786; Lowe v. Hamilton, 132 Ind. 406, 409, 31 N.E. 1117.
The agreement by appellees to pay appellant $ 2,893.16 in the event the case pending in this court was reversed, and the firm of Dickson & Co. were not indebted to said Indiana, etc., Manufacturing Co., was nothing more than an agreement to pay the price of the property purchased to the seller instead of to one of the firm creditors, and was not therefore within the statute of frauds.
It is insisted by appellees that the part of the contract upon which the right to recover the $ 2,893.16 is predicated was never signed by the appellees, and that they are not, therefore, liable thereon.
The contract sued...
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