Eppert v. Hall

• Decision Date: 28 April 1892
• Citation: 133 Ind. 417,31 N.E. 74
• Parties: Eppert et al. v. Hall.
• Court: Indiana Supreme Court

133 Ind. 417

31 N.E. 74

Eppert et al.

v.Hall.¹

Supreme Court of Indiana.

April 28, 1892.

Appeal from circuit court, Clay county; J. A. McNutt, Special Judge.

Action by Mary A. Hall against Charles Eppert and others on a note. From a judgment for plaintiff, defendants appeal. Reversed in part.

Geo. A. Knight, B. V. Marshall, and Sidney B. Davis, for appellants. I. N. Pierce and W. W. Carter, for appellee.

McBRIDE, J.

This was a suit by the appellee on a note alleged to have been executed to her by the appellants Eppert, Duey, Keys, and one William B. Tuell. Pending the litigation Tuell died, and the appellants Tuell and Marshall, as administrators of his estate, were substituted as defendants in his stead. The defenses were non est factum and want of consideration. The appellee having recovered a verdict, a joint motion for a new trial by all of the appellants and a separate motion by the administrators were both overruled. Both rulings are assigned as error.

The first reason assigned for a new trial by the parties jointly is that the verdict is not sustained by sufficient evidence and is contrary to law. As discussed, it involves simply the question of the sufficiency of the evidence to sustain the verdict. The appellee testified as a witness in her own behalf. Her testimony was material, and probably of controlling force, in support of the verdict. Counsel for the appellant insist that she was so thoroughly impeached by proof of irreconcilable inconsistencies and downright contradictions between her testimony in the case at bar and in another case involving substantially the same subject-matter that her testimony here should be wholly disregarded. Her credibility and the weight to be given her testimony were questions for the trial court and jury. We would not be justified in disturbing the verdict upon that ground.

The appellants insist that the court erred in its third instruction to the jury. That instruction was, in substance, a mere statement to the jury of the familiar and elementary proposition that a valid consideration, as between the principal debtor on the note and his creditor, was sufficient to support the undertaking of the sureties. The note was executed to secure a loan of $600, which was to be used in paying off another note on which the same sureties were liable. The appellants also insisted that it was not to be delivered until one Button had signed it as an additional surety, and then only on the cancellation of the other note, neither of which conditions were complied with. The appellants contend that the instruction was not applicable to the issue, and was, under the circumstances, misleading. As above stated, one of the defenses pleaded was want of consideration. As applied to the issues thus formed, the instruction in question was certainly proper. Elsewhere the phase of the controversy presented by the facts above stated was fairly and correctly stated. If the instruction was not as full as the appellants desired, they should have asked for additional instructions on that point. The appellants have no reason to complain of this instruction.

The...