Fordice v. Scribner

• Decision Date: 28 October 1886
• Citation: 9 N.E. 122,108 Ind. 85
• Parties: Fordice v. Scribner and others.
• Court: Indiana Supreme Court

108 Ind. 85

9 N.E. 122

Fordice

v.Scribner and others.

Supreme Court of Indiana.

October 28, 1886.

Appeal from Floyd circuit court.

John H. Stotsenburg, for appellant.

Zollars, J.

This action by appellant is against Benjamin F Scribner and the administrator of the estate of Horatio Scribner, deceased. It is alleged in the complaint that in 1872 Benjamin F. and Horatio Scribner, by their firm name of Scribner & Son, executed to H. N. Devol three promissory notes for the aggregate amount of $1,200, which, after maturity, were assigned to appellant. The fourth paragraph of answer by the administrator is, in substance, that in 1877 the payee, Devol, and before he had assigned the note, for a valuable consideration, fully and entirely released and discharged Benjamin F. Scribner, who was jointly liable upon the notes with the decedent, Horatio Scribner, from all liability upon and on account of the notes, and thereby released the decedent. A copy of the so-called release, which is more a contract for a release, is filed with the answer, as a part of it, and is as follows: “In order to save ourselves the expense and costs of bankruptcy proceedings against Gen. Benjamin F. Scribner, and to save him also from the mortification thereof, authorize him to transfer and set over to Salem Town all the stock of drugs and medicines, (except the amount which is allowed by the bankrupt law,) who shall proceed to sell such stock at public or private sale, as soon as possible, and divide the net proceeds pro rata among us; and we, and each of us, agree, in consideration of such transfer, to fully and completely release and discharge the said Scribner from his said indebtedness to us, and each of us, and to execute formal releases of such indebtedness to him at any time; he paying the expense of such release, if any. We will execute said releases as soon as said transfer is made to said Town.” Devol, the payee of the note in suit, appellant, and a large number of other creditors of Gen. Scribner, signed the foregoing agreement.

Benjamin F. Scribner also filed an answer; the first and second paragraphs of which set up the foregoing agreement, and allege that the stock of drugs was turned over to Town as therein provided for, and that he was thereunder and thereby released and discharged from all liability upon the notes in suit.

One paragraph of appellant's reply is to the fourth paragraph of answer by the administrator, and the above-mentioned first and second paragraphs of answer by Benjamin F. Scribner. That reply is, in substance, that, at the time the written agreement was executed, it was orally agreed by and between Devol, the payee, Benjamin F., and Horatio Scribner, the decedent, that the written agreement or release should not apply to, or affect in any manner, the debt evidenced by the notes in suit, and that, in consideration of that agreement, Devol signed the agreement or release. The court below sustained a demurrer to the reply, and that ruling is assigned as error.

Before it can be said that the court below erred in that ruling, it must be determined that the reply is sufficient to meet the several paragraphs of answer to which it is directed. Falmouth Turnpike Co. v. Shawhan, 107 Ind. 47; S. C. 5 N. E. Rep. 408. It will be observed that the writing signed by Devol, a copy of which is filed with and as a part of the answers, is not a receipt, nor a release simply from a single party to another, with no consideration stated, as was the case in Scott v. Scott, 105 Ind. 584; S. C. 5 N. E. Rep. 397. The writing is rather a contract for a release upon the stated consideration that Benjamin F. Scribner should turn over his stock of drugs, etc., to Town, to be by him sold, and the proceeds distributed pro rata upon the debts due to the signers. There is also a positive and unconditional agreement on the part of the signers to release and discharge Benjamin F. Scribner from his indebtedness to them, and each of them. At the time the written agreement was executed Devol held the notes in suit, executed by Scribner & Son, a firm composed of Benjamin F. and Horatio Scribner, the decedent. The liability of...