James v. Jellison

• Decision Date: 29 March 1884
• Docket Number: 10,307
• Citation: James v. Jellison, 94 Ind. 292 (Ind. 1884)
• Parties: James et al. v. Jellison
• Court: Indiana Supreme Court

94 Ind. 292

James et al. v. Jellison

No. 10,307

Supreme Court of Indiana

March 29, 1884

From the Randolph Circuit Court.

W. A Thompson, J. W. Thompson, A. O. Marsh, I. P. Gray and P Gray, for appellants.

A Vorhis, M. B. Miller and J. E. Neff, for appellee.

OPINION

Colerick, C.

This was an action brought by the appellee against the appellants, upon a contract, described in the complaint as follows:

"November 4th, 1881.

"On or before December 8th, after date, we promise to pay to Isaiah Jellison only one hundred dollars: Provided, Said payee is married on the 5th to 8th day of December, 1881, which marriage will be to us value received for this note; and Provided, Said payee gives us the exclusive right to carry marriage benefit insurance on him and Miss Lizzie Stead, whom he is to marry; failure to comply with above agreement annuls this obligation.

J. D. James.

"Willis Whipple.

"J. E. Harker."

The complaint consisted of two paragraphs. A demurrer was sustained to the first and overruled to the second. An answer of nine paragraphs was filed to the second paragraph of the complaint. A motion to strike out all of said paragraph except the first and ninth was sustained. The first paragraph of the answer averred that said contract was executed without any consideration whatever, and the ninth paragraph was a general denial. A reply of general denial was filed to the first paragraph of the answer, and the issues thus formed were submitted to a jury for trial, which resulted in the rendition of a verdict in favor of the appellee for $ 90, and over a motion for a new trial, judgment was rendered upon the verdict against the appellants, from which they appeal, and assign as errors:

1st. That the court erred in overruling the demurrer to the second paragraph of the complaint.

2d. That the court erred in striking out the second, third, fourth, fifth, sixth, seventh and eighth paragraphs of the answer, and each of them.

3d. That the court erred in overruling the motion for a new trial.

The appellee, in the second paragraph of his complaint, after averring the execution by the appellants of the contract above set forth, alleges, "that said marriage benefit insurance was a valid and subsisting corporation for the purpose of paying premiums to persons who would get married, and for the purpose of enabling persons who would contract marriage to receive premiums, if application was made and certificates of insurance issued to the person who was to marry, or to any person who might make application in the name of the party who was about to marry, in case the marriage of the party was consummated; that he did, on the 8th day of December, 1881, marry Elizabeth Stead, known as Lizzie Stead, in compliance with his agreement, and that in further compliance with his agreement he gave the defendants the exclusive right to carry marriage benefit policies on himself and said Lizzie Stead; that he signed all the applications for marriage benefit insurance that the defendants presented to him to sign; that he did sign a large number of applications for the defendants which were necessary to enable them to procure said insurance policies, and for them to take out marriage benefit insurance on him; that the defendants did take out a large number of marriage benefit policies on him in his name, upon which the defendants received a large sum of money, to wit, $ 60; that plaintiff did in all things comply with his said agreement; that the defendants have wholly failed to comply with their said agreement or any part thereof." Wherefore he prayed judgment.

It is evident, by the provisions of the contract sued upon, and the averments in the complaint, that the appellants were merely interested in the consummation of the appellee's marriage so far as it would enable them to realize therefrom some benefit by and through said insurance. If the condition set forth in the contract...