Ford v. Garner

Decision Date11 December 1860
Citation15 Ind. 298
PartiesFord and Another v. Garner
CourtIndiana Supreme Court

APPEAL from the Floyd Circuit Court.

The judgment is reversed, with costs.

W. T Otto and G. V. Howk, for appellants.

T. L Smith and M. C. Kerr, for appellee.

OPINION

Worden, J.

Suit by the appellee against Ford and Morris upon the following bond, viz:

"Know all men, by these presents, That we, John B. Ford and William D. Morris, of the city of New Albany, State of Indiana, are held and firmly bound unto Ruth Garner, in the penal sum of twenty-five hundred dollars; for the payment of which, well and truly to be made and done, we hereby bind ourselves, our heirs, executors, and administrators. Sealed with our seals, and dated this 12th day of April, 1858."

"The foregoing bond is subject to the following conditions, and is made for the purposes following, to wit: Whereas, said Ruth Garner is justly indebted in the amount of two notes of one thousand dollars each, with interest, held by the Ohio Insurance Company, upon which said Ford and Morris are indorsers, which notes were originally given for a part of the Steamer Pelican; and whereas, the Steamer Pelican was insured, in several insurance companies, for the use and benefit of the owners of said boat; and whereas, said boat was afterward destroyed by fire, and a part of the insurance money is coming to said Ruth Garner as one of the owners of said boat; and whereas, said Ruth Garner has agreed that enough of her interest in the money arising from the said insurance of said boat shall be applied, (if there is enough), to pay both of said notes and the interest thereon, if not, whatever there may be; on condition that said John B. Ford shall and will effect an insurance, for the term of seven years, upon the life of William H. Garner, for the sum of two thousand dollars, for the use and benefit of said Ruth Garner, and pay all calls and premiums, for said period, on account of said insurance; said insurance to be in a good and solvent insurance company. And whereas, said William H. Garner is not now at home, but down the river, and no medical examination can be made of him for the purpose of effecting said insurance; therefore the said Ford agrees and binds himself to pay to said Ruth Garner the sum of two thousand dollars in case the said William H. Garner shall depart this life before an insurance shall be effected upon his life as aforesaid. Now, therefore, if the said Ford shall, in all things, comply with the stipulations in the foregoing instrument, to be by him performed, then the foregoing bond to be void, otherwise to be and remain in ful force and virtue in law.

"In witness whereof, &c.,

(Signed,) "J. B. Ford, [l.s.]

"W. D. Morris, Security, [l.s.]"

The complaint alleges the death of said William H. Garner, no insurance having been effected upon his life, as provided for in the bond.

A demurrer was filed to the complaint, which was overruled, and the defendants excepted.

The principal objection urged to the complaint is that the bond was executed without a sufficient consideration. We need not decide whether any consideration would be presumed, other than that stated in the condition of the bond, as one of the paragraphs of the answer alleges, that it was executed "in consideration that the plaintiff had agreed that enough of her interest in certain money mentioned in said bond, should be applied to pay a certain debt of the plaintiff, then due and owing from her to the Ohio Insurance Company, and the interest thereon, as specified in said bond, and for no other consideration whatever."

To this paragraph of the answer a demurrer was sustained, and exception taken. Issues of fact were...

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27 cases
  • Title Guar. & Sur. Co. of Scranton v. State ex rel. Leavenworth State Bank
    • United States
    • Indiana Appellate Court
    • June 16, 1915
    ...of the fund or give appellee control of it. Such promise did not operate as an assignment of the fund or create a lien thereon. Ford v. Garner, 15 Ind. 298. “In order to constitute an assignment, either in law or equity, there should be such an actual or constructive appropriation of the su......
  • Title Guaranty & Surety Company of Scranton, Pennsylvania v. State ex rel. Leavenworth State Bank
    • United States
    • Indiana Appellate Court
    • June 18, 1915
    ...specifically as a fund appropriated for that purpose, but generally as any other fund or property might be subjected to that end. Ford v. Garner, supra, 302. The court not err in overruling the demurrer to the complaint. We proceed to consider the sufficiency of the evidence. The following ......
  • Banholzer v. Grand Lodge A. O. U. W.
    • United States
    • Kansas Court of Appeals
    • June 18, 1906
    ...90 N.Y.S. 47; McLaughlin v. McLaughlin, 104 Cal. 177; Broom v. Grand Lodge, 57 A. 176. (2) The pretended assignment was invalid. Ford v. Garner, 15 Ind. 298; Wyman v. Snyder, 112 Ill. 98; Chrisman Russell, 14 Wall. 69; Whittle v. Skinner, 23 Ver. 531; Feamster v. Withrow, 9 W.Va. 296; Chris......
  • Fourth Nat'l Bank of St. Louis v. Noonan
    • United States
    • Missouri Supreme Court
    • October 31, 1885
    ...in a future fund which may or may not come into actual existence. Spain v. Hamilton, 1 Wall. 604; Green v. Ashley, 6 Leigh, 135; Ford v. Garner, 15 Ind. 298. (2) A note cannot be assigned in part so as to enable the partial assignee to maintain an action on the same against the maker. Edwar......
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