Douthit v. Mohr

• Decision Date: 09 November 1888
• Citation: 116 Ind. 482,18 N.E. 449
• Parties: Douthit et al. v. Mohr.
• Court: Indiana Supreme Court

116 Ind. 482

18 N.E. 449

Douthit et al.

v.Mohr.¹

Supreme Court of Indiana.

November 9, 1888.

Appeal from circuit court, Shelby county; K. M. Hord, Judge.

Action on a note, brought by Christian Mohr against Alonzo Douthit and George Baker. Judgment for plaintiff, and defendants appeal.

J. B. McFadden, for appellants. Isley & Akers, for appellee.

Niblack, C. J.

This action was commenced before a justice of the peace; Christian Mohr, the appellee here, being the plaintiff, and Alonzo Douthit and George Banker, the appellants, being the defendants. The plaintiff obtained a judgment before the justice. Upon an appeal to the circuit court, the plaintiff filed a new and substituted complaint, charging that on the 5th day of May, 1885, Douthit executed to the plaintiff his promissory note for the sum of $65.18, payable one day after date; that Douthit failed to pay the note at maturity; that afterwards Douthit and the plaintiff had a final settlement, and that as part of such oral settlement the defendants, Douthit and Baker, entered into a written agreement concerning the payment of such note; that by the terms of the agreement Douthit was to pay the note in sawing lumber for the plaintiff, at and for the customary price for such work; that Douthit was to commence such sawing on the 1st day of September, 1885, and to saw five dollars' worth each week until the note was paid; that Baker entered into the contract or agreement in writing as surety for Douthit, whereby he obligated himself for the execution of the same, and the payment of the note; that, notwithstanding sufficient time had elapsed to enable them to pay the note in sawing, the defendants had failed and refused to saw any lumber, or to pay the note in money; that after the cause had been appealed to the circuit court the contract or agreement sued on, and the note and other papers pertaining to the action, had become lost. Wherefore the plaintiff asked leave to make proof of such contract or agreement and the note. A several demurrer to the complaint being first overruled, the circuit court heard the evidence, and gave judgment in favor of the plaintiff. Error is assigned only upon the overruling of the demurrer to the complaint. The objections made to the complaint are- First, that a sufficient excuse is not shown for failing to file the note and contract, or copies of them, with the substituted complaint; second, that there is no averment that the contract was either delivered to Mohr, or accepted by him; third, that there is no allegation that the note remained unpaid when the action was...