Keesling v. Frazier
| Decision Date | 28 May 1889 |
| Docket Number | 13,132 |
| Citation | 21 N.E. 552,119 Ind. 185 |
| Parties | Keesling v. Frazier |
| Court | Indiana Supreme Court |
From the Delaware Circuit Court.
Judgment affirmed.
R. S Gregory and A. C. Silverburg, for appellant.
W. W Orr and J. E. Mellette, for appellee.
It is averred in the complaint in this cause, that in the year 1884 Felix Leffingwell was under indictment, in the Randolph Circuit Court, for selling intoxicating liquor without a license so to do; that he was arrested on a warrant issued on said indictment, and that the appellant herein, being interested in his release from custody, and desirous of obtaining bail for him, contracted and agreed with the appellee that in consideration that he would enter into a recognizance with the said Leffingwell for his appearance in said court to answer said charge, he, appellant, would indemnify appellee for any loss he might sustain by reason thereof; that, pursuant to said contract and agreement, he did enter into a recognizance with said Leffingwell for his appearance in said court to answer said charge on a day named in said recognizance; that the said Leffingwell failed to appear at said time, pursuant to said recognizance, and answer said charge, by reason of which the said recognizance was forfeited and the appellee was compelled to and did pay in discharge thereof, and in discharge of the costs thereon, the sum of $ 231.83; that the appellant, although often requested so to do, has failed and refused to indemnify the appellee.
The defendant answered: 1st. By general denial. 2d. Want of consideration.
A trial by jury resulted in a verdict against the appellant for the sum of $ 239.43. The appellee remitted $ 14.73, and the court, over a motion for a new trial, rendered a judgment against the appellant on said verdict. The appellant assigns as error:
1. That the circuit court erred in overruling the appellant's demurrer to the appellee's complaint.
2. That the said court erred in overruling the appellant's motion for a new trial.
3. That the said court erred in overruling the appellant's motion in arrest of judgment.
It was formerly held that an agreement like the one set up in the complaint in this cause was void, as being an agreement to answer for the default of another; but it is now held, in this State, that such an agreement is valid, as an original agreement, and is not within the statute of frauds. Anderson v. Spence, 72 Ind. 315.
The complaint states a cause of action in favor of appellee against the appellant. The court below,...
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