Hunt v. Dederich

• Decision Date: 12 March 1886
• Parties: Hunt v. Dederich and others.
• Court: Indiana Supreme Court

105 Ind. 555

5 N.E. 710

Hunt

v.Dederich and others.

Supreme Court of Indiana.

Filed March 12, 1886.

Appeal from Ohio circuit court.

John B. Coles, for appellant.

Geo. E. Downey, for appellee.

Elliott, J.

The complaint of the appellees is based on three promissory notes, executed by the appellant and Lewis T. Cooper to Erastus S. Downey, and by him indorsed to the appellees. There are two paragraphs of the answers, but they are substantially alike, and we need give a synopsis of only one of them. The answer admits the execution of the promissory note sued on, and contains these allegations: That the consideration for the notes was the sale and delivery of one “Dederick Hay-press” by Downey to the appellant and Cooper, as partners; that it was agreed by them that the appellant should transfer to Cooper his undivided interest in the press, provided the owner and holder of the notes would release the appellant from all liability thereon, and look solely to Cooper for payment; that in October, 1882, while the notes were still owned by Downey, and before the indorsement to the appellees, the appellant met Downey, and stated to him the agreement that he, the appellant, had made with Cooper; that Downey then released the appellant from all liability on the note, and agreed to accept Cooper as payor, “in consideration that the defendant should release and transfer his interest in said property to Cooper; that Cooper then assumed and agreed to pay the notes in full under the contract; that Downey then stated that he did not have the notes with him, and could not at that time take the defendant's name off;” that, relying on the contract with Downey, and “in consideration thereof, the defendant released and transferred his interest in said property, of the value of two hundred and fifty dollars, to Cooper, and delivered the same into his exclusive possession and ownership, without requiring security or indemnity from him.”

The trial court erred in sustaining the demurrers to the answer. The consideration for Downey's contract was not a past or executed one; for the agreement with Cooper was that if Downey would release the defendant from liability, then the latter would transfer his interest in the property for which the notes were given to his partner, Cooper. Where a party agrees to transfer property to a third person in consideration that the holder of the notes given for the property will release the maker of the note from all liability, and...