Laboyteaux v. Swigart

• Decision Date: 20 November 1885
• Docket Number: 12,195
• Parties: Laboyteaux v. Swigart et al
• Court: Indiana Supreme Court

3 N.E. 373

103 Ind. 596

Laboyteaux v. Swigart et al

No. 12,195

Supreme Court of Indiana

November 20, 1885

From the Henry Circuit Court.

Judgment affirmed, with costs.

J Brown and W. A. Brown, for appellant.

J. W R. Milliner, for appellees.

OPINION

Mitchell, C. J.

This action was commenced before a justice of the peace. When the cause came to the circuit court, a demurrer was refiled and overruled to the complaint, and it is now contended that this ruling was erroneous.

The complaint sets out, in substance, that at a given date Emma Swigart was the owner of a house and lot in the town of Newcastle, Indiana, which she and her husband, Jacob Swigart, Jr., had joined in mortgaging to L. P. Mitchell as security for a debt of $ 800 which they owed him. Jacob Swigart, Jr., at the same time owed McDorman a debt amounting to $ 342.15. This debt was in judgment, and the appellant Laboyteaux and Jacob Swigart, Sr., were liable as sureties for its payment.

The complaint avers that Jacob Swigart, Jr., was insolvent; that Laboyteaux agreed that if Emma Swigart would convey her property to Mitchell, who agreed to pay $ 1,154 for it, and turn over to him the excess after paying the encumbrance thereon, he would pay off the McDorman judgment, upon which he and the elder Swigart were sureties. In pursuance of this agreement the conveyance was made to Mitchell by Mrs. Swigart and her husband. The amount of Mitchell's mortgage was deducted from the purchase-price, and the excess, $ 207.29, turned over to Laboyteaux. This sum, with $ 65 additional, he applied on the McDorman judgment, leaving $ 65 of that judgment unpaid. Execution was then issued on the judgment and his co-surety, Swigart, Sr., was compelled to pay it. The complaint avers that Mrs. Swigart would not have conveyed the lot, and turned over the excess of money above the mortgage, but for the agreement of the defendant to pay off and satisfy the McDorman judgment. The suit is by Mrs. Swigart, her husband joining, to recover the $ 65 which Laboyteaux refused to pay.

It is contended, that to the extent that the appellant agreed to pay more than the amount of money turned over to him by Mrs. Swigart, the agreement was without consideration, and that, therefore, he is not liable for refusing to perform it.

It is settled that where a debt, the amount of which is not controverted, is due, the receipt from the debtor of a sum less than the whole, upon an agreement to discharge the debt, is not a satisfaction, and the agreement to discharge can not be enforced. Fletcher v. Wurgler, 97 Ind. 223.

It is a general principle, too, that a promise to one to pay him if he will do that which by law or by contract he is already bound to do, is without consideration and can not be enforced. Ritenour v. Mathews, 42 Ind. 7.

The principles which control in such cases, however, are not applicable in this case. The debt, for the payment of which Mrs. Swigart made provision by the conveyance of her property, was not her debt. She was under no legal or moral obligation to pay it. She had the right to sell her property if she chose, and appropriate the excess after paying the encumbrance to her own use, instead of devoting it toward the liquidation of her insolvent husband's debt and the relief of his sureties. As she was neither the debtor nor under any legal or moral obligation to pay the debt represented by the judgment, her agreement to pay a sum less than the whole, in consideration of the agreement of the appellant to pay the balance, was not within the rule that a debtor can not satisfy an uncontroverted debt which is due by the payment of a sum less than the whole amount. For the same reason, it was not within the other rule that a promise, the consideration of which is that another will do what he is already under contract to do, is...