Kramer v. Williamson

• Court: Indiana Supreme Court
• Writing for the Court: Dailey, J.
• Citation: Kramer v. Williamson, 135 Ind. 655, 35 N.E. 388 (Ind. 1893)
• Decision Date: 28 November 1893
• Docket Number: 16,458
• Parties: Kramer v. Williamson

35 N.E. 388

135 Ind. 655

Kramer v. Williamson

No. 16,458

Supreme Court of Indiana

November 28, 1893

From the Madison Circuit Court.

The judgment is affirmed.

C. M Greenlee, E. B. Goodykoontz and G. M. Ballard, for appellant.

W. O Dean, W. H. Dean, J. W. Kittinger and L. Schwinn, for appellee.

OPINION

Dailey, J.

This was an action brought by the appellee, against the appellant in the court below, to obtain a judgment and decree, declaring certain notes, and a mortgage executed to secure the same, null and void, and to cancel said mortgage.

The complaint is in two paragraphs; and each substantially avers that at the time of the execution of the notes and mortgage in controversy there were two suits pending in the Madison Circuit Court, one of which was a proceeding by Maleva Hutson, against the appellant and appellee herein, to foreclose a vendor's lien on certain real estate therein described, which the appellant had sold and conveyed to the appellee, prior thereto, by a deed containing the covenants of general warranty; that the other suit was an action brought by one William E. Redwine against the appellee to recover $ 2,000 damages for alleged malicious prosecution; that said causes were both set for trial in said court on the same day; that the case of Hutson against appellant and appellee, in which the appellant was the real party defendant in interest, was first taken up for trial, and after the plaintiffs therein had introduced their evidence in chief, it became evident to the appellant that the plaintiffs would succeed in said cause; that thereupon the appellant entered into an agreement with the plaintiffs to compromise, and did settle said suit for the sum of $ 225; that the appellee had engaged the Behymer brothers, as attorneys to represent him in his defense in the Redwine case, but they failed to be present and assist him in that behalf; that while the appellant was effecting the adjustment of his said cause for $ 225, he came to the appellee and represented to him that there was a large amount of costs accrued in the case of said Redwine against the appellee amounting in the aggregate to $ 200, and that said Redwine was offering to accept the sum of $ 200 in full of his claim to damages in his suit against the appellee; that the appellant was compromising his said cause with Mrs. Hutson et al., and if the appellee would execute to him his note for $ 200, due five years after the date thereof, secured by a mortgage on the appellee's real estate, he--the appellant--would furnish and pay for the appellee to said Redwine the $ 200, in settlement of the suit for malicious prosecution; that these representations were false and fraudulent; that the appellant never compromised said suit against the appellee and never paid any amount for him in adjustment of said suit or otherwise, and that it was not necessary for him to have $ 200, or any other amount for that purpose, and that the consideration for said note has wholly failed.

There is a slight difference between the verbiage of the two paragraphs of the complaint, but we think each one sufficiently shows that no consideration moved from the appellant to the appellee for the note in suit, and that as between the appellant and the appellee, the former was primarily liable for the amount paid in the foreclosure proceeding. The averments that the appellant falsely represented to the appellee that he had a proposition from Redwine offering to compromise the action for $ 200, and that it was necessary that he have that sum to pay in the settlement of said cause, and that the appellant was paying the amount to Redwine for appellee to adjust the same; that the appellee believed these statements to be true, and relying thereon executed the notes and mortgage in suit, are representations as to existing facts and the further averment that the appellant never compromised said suit, nor paid any amount for appellee in settlement or otherwise, sufficiently shows that the consideration for the notes in suit failed, and entitles the appellee to their cancellation.

It is insisted, by the counsel for the appellant, that the allegations of fraud are only by way of recital, and nothing more, and that there is no averment that the representations claimed to have been made were false or untrue.

It does not appear from the complaint, unless it be by inference that Redwine was demanding $ 200 from appellee in settlement of the damage suit, at the time the representations were made and the notes were executed; but whether he did or...