Lagrange v. Coyle

• Decision Date: 05 April 1912
• Docket Number: 7,564
• Citation: 98 N.E. 75,50 Ind.App. 140
• Parties: LAGRANGE v. COYLE ET AL
• Court: Indiana Appellate Court

98 N.E. 75

50 Ind.App. 140

LAGRANGE v. COYLE ET AL

No. 7,564

Court of Appeals of Indiana

April 5, 1912

From Superior Court of Marion County (74,555); George F. Mull Special Judge.

Action by Jasper W. LaGrange against George W. Coyle and another. From a judgment for defendants, the plaintiff appeals.

Reversed.

Mark H Miller Robert M. Miller and Henry C. Barnett, for appellant.

John M Wall, William W. Spencer and Edwin W. Spencer, for appellees.

OPINION

IBACH, P. J.

This was an action by appellant against appellees upon a promissory note in the following words and figures:

"Franklin, Ind., Sept. 19, 1904.

Nov. 1, 1906 after date we promise to pay to the order of J. W. LaGrange two hundred dollars, negotiable and payable at the Franklin National Bank, Franklin, Ind., with six percent interest after date until paid, and reasonable attorney's fees; value received, without any relief whatever from valuation or appraisement laws. The drawers and endorsers severally waive presentment for payment, protest and nonpayment of this note, and all defense on the ground of any extension of time of its payment that may be given by the holder or holders to them or either of them. The express conditions of the sale and purchase of the stallion Aulton Boy, for which this note is given, is such that the title, ownership or possession does not pass from the said J. W. LaGrange until this note and interest is paid in full, and if the same should become due and remain unpaid, or any portion of the same horse, I, G. W. Coyle, hereby authorize J. W. LaGrange, or his agent, to enter upon my premises and take possession of the said horse, or wherever it may be found, and any payment that shall have been made shall be considered compensation for the use of said horse.

Post office, P. O. Indpls.

Address, Township--Haughville Sta.--

R. R. 18.

G. W. Coyle,

$ 200. Paul Kraft."

Appellee Coyle filed a cross-complaint which declared on the breach of a written instrument of warranty, executed to him at the time of the purchase of the horse and the execution of the note, guaranteeing the horse to be a sound, wellbred stallion, capable of begetting colts, alleged that he was impotent and unable to perform the duties for which he was purchased, and asked $ 500 in damages for expense in feed and care of him.

Both appellees filed an amended third paragraph of answer, which alleged, in substance, that the note sued on was given by appellees in payment for a certain stallion named Aulton Boy, sold to appellee Coyle at about the time of the execution of said note. At the time of the delivery of the horse to Coyle, and the delivery of the note to plaintiff, plaintiff executed and delivered to Coyle the following instrument.

"Franklin, Ind., Sept. 23, 1904.

We guarantee the horse Aulton Boy to be a reasonably sure breeder.

W. H. LaGrange & Son."

The son named in the signature of the instrument is the plaintiff. Said horse was not a reasonably sure breeder, and did not perform and was unable to perform the duties of a stallion as guaranteed by said plaintiff, and he failed to beget colts, and out of eighty-seven services by said stallion only five colts were begotten by him. Defendant Coyle was at the expense of $ 500 in the care and keep of said horse, and said horse was and is worthless as a stallion. As soon as the first season was over, and defendant learned that said horse had not begotten colts, as hereinbefore alleged, sometime in May, 1906, he tendered said stallion back to the plaintiff, and demanded a surrender of said note, and plaintiff then refused to take back the horse or surrender the note, and still refuses. Defendants pray for a surrender and cancellation of the note.

Each of appellees filed a separate sworn fifth paragraph of answer, admitting the signing of the note sued on, and its delivery to the plaintiff, but alleging that after the signing and delivery, and without the consent or knowledge of appellees, the note "was altered and changed in manner following, to wit: the words 'stallion,' 'Aulton Boy,' 'J. W. LaGrange,' 'G. W. Coyle,' 'horse,' 'horse,' were inserted in the body of said note. That said changes so made were material alterations of the note, and the note sued on is not in terms the note executed by appellees."

It is relied on for reversal that the court erred in overruling appellant's separate demurrers to the cross-complaint, amended third paragraph of answer, and separate fifth paragraphs of answer.

The separate fifth paragraphs of answer are good. "Where an instrument is altered after its execution, it will be presumed until the contrary is shown, that the alterations were made by the party claiming under it, or by one under whom he claims, and it is not necessary in an answer stating that an instrument sued on has been altered, to allege that it was altered by the party claiming under it, or by one under whom he claims." Bowman v. Mitchell (1889), 79 Ind. 84, 6 L.R.A. 469. See, also, Palmer v. Poor (1889), 121 Ind. 135, 22 N.E. 984.

The alterations alleged were sufficient to avoid the contract. "If while a written contract remains executory, a party unauthorized so alters it as to vary its legal effect to his advantage, whether he meditates a fraud or not, then at the election of the other party, he is estopped from relying upon it in a court of justice. Plainly in reason, after a party has intentionally altered the contract, thus abandoning it in its original form, he can not before the tribunal reclaim what in pais he had cast aside; and he can not rely on the new form of words, because to them the other party had not consented." Bishop, Contracts (2d ed.), §§ 746, 747. See, also, Coburn v. Webb (1877) 56 Ind. 96, 100, 26 Am. Rep. 15. "Any change which makes a new stipulation or condition in the contract of the parties is material, as a stipulation waiving the benefit of a legal defense or exemption, or a stipulation in a note...