Harshman v. Paxson

• Decision Date: 14 August 1861
• Citation: 16 Ind. 512
• Parties: Harshman and Another v. Paxson
• Court: Indiana Supreme Court

16 Ind. 512

Harshman and Another v. Paxson

Supreme Court of Indiana

August 14, 1861

APPEAL from the Clinton Common Pleas.

The judgment is reversed, with costs. Cause remanded.

J. N Sims and J. F. Suit, for the appellants.

R. P Davidson, for the appellee.

OPINION

Worden J.

Complaint as follows, viz., Ezeriah Paxson complains of Enos Harshman and David Mason, and says, that heretofore, to wit, on November 20, A. D., 1854, the said Enos Harshman, conspiring with said David Mason to cheat and defraud the plaintiff, did execute and deliver to the plaintiff, by the hand of said Mason, a written representation, assurance, and inducement, (a copy of which is filed,) whereby, intending to deceive and defraud the plaintiff, the said defendants caused and induced plaintiff to deliver to said Mason, a worthless and insolvent person, one dark brown mare, and one bay mare, each of the value of $ 100, and of the collective value of $ 200; and upon the faith and credit of said written instrument, and confiding in the honesty and rectitude of defendants, said plaintiff having delivered, as aforesaid, the said mares to the said Mason, confidently trusted and expected that he, the said Mason, or Harshman, on his behalf, would, on the faith and obligation of said written instrument, pay to plaintiff the full value thereof, or secure the same to be paid. And the plaintiff avers that the deception and fraud of the defendants consists, in part, in this: that theretofore the said Mason had represented to one Aaron Paxson, that he was the owner in fee simple of valuable, undivided interests in two certain tracts of land, in Jay county, in said State; which he proposed to sell and convey to said Aaron Paxson, in consideration that said Aaron would procure from plaintiff, and deliver to him therefor, the two mares above described, to which proposal said Aaron verbally agreed. But afterward, and before the execution of the aforesaid instrument, defendants were fully informed, and well knew, that said Mason was not the owner, or entitled, of any interests in more than one tract of land in Jay county, and that he could not make conveyance of any such to said Aaron Paxson. Yet notwithstanding being so informed, the said defendants, intending to defraud and deceive plaintiff, withheld from him their knowledge of Mason's want of title, and induced him, (plaintiff,) to deliver to said Mason the above described mares, by the means above set forth. And plaintiff further says, that the said defendants, nor either of them, have paid to said plaintiff the value of his said property, though often requested," &c.

The written instrument mentioned is as follows, viz.,

"November the 20th, 1854.

'Mr. E. Paxson, Sir:

"If you will let David Mason have them horses, I will go his bail for the making of the deed, whenever the letter comes with the numbers and range in; if he does not, I will pay you two hundred dollars for your horses. I am going to trade him a good mare for the filly, on trial, a mare worth one hundred and ten dollars.

(Signed,) "Enos Harshman."

A demurrer to this complaint was overruled, and the defendants excepted. Such further proceedings were had, as that final judgment was rendered for the plaintiff.

The record presents no question but the one arising upon the ruling on the demurrer to the complaint.

By the complaint, we suppose it was intended to set forth a cause of action arising ex delicto, and not ex contractu. It is clear, that no cause of action is shown against the defendants arising upon the contract set out. By the contract set out, Harshman became "bail" for Mason for the making of the deed, upon the happening of the event named; and on Mason's failure to make the deed, as provided for, Harshman bound himself to pay the plaintiff $ 200 for the horses. In order to hold Harshman liable on this contract, it must be shown that Mason refused or neglected to make the deed, upon the coming of the letter named in the instrument. Perhaps the instrument should be construed to mean that such letter was expected, and would be...