Low v. Freeman
| Decision Date | 15 February 1889 |
| Docket Number | 13,553 |
| Citation | 20 N.E. 242,117 Ind. 341 |
| Parties | Low v. Freeman |
| Court | Indiana Supreme Court |
From the Hancock Circuit Court.
Judgment reversed, with costs, with instructions to sustain the motion for a new trial.
J. A New and J. W. Jones, for appellant.
J. H Mellett, E. Marsh and W. W. Cook, for appellee.
This is an action of replevin by appellee against appellant to recover the possession of a promissory note given by appellant to appellee for $ 107.93, dated November 25th, 1885.
Appellant answered by general denial and an affirmative answer.
Trial by jury, verdict and judgment for appellee; motion for a new trial by appellant; motion overruled and exceptions.
Error assigned in overruling the motion for a new trial.
It was contended by the appellant that prior to the execution of the note in question in this case there existed certain notes and accounts between appellant and the estate of Benjamin Freeman, for which appellee was acting as agent; that by agreement they were to select a disinterested person to make the calculations and adjust their differences; that they selected one Cooper, and he made the computations, making the amount due the estate from appellant $ 107.93, and on that basis appellant gave the note in controversy, and by agreement appellant took the papers; that there was omitted from the computation which Cooper made, divers receipts and accounts held by appellant against the estate of said Benjamin Freeman, and it was agreed there was to be another computation, and appellant and appellee agreed that Ezra Eaton should make such computation, and to take into consideration all the notes, accounts and receipts not taken into account by Cooper, and that whatever amount appellant owed said estate should be left by appellant with Eaton for appellee; that Eaton made the computation, and there was due the estate from appellant only $ 49; that appellant paid that amount, and notified the appellee, and thereupon received possession of the note in controversy.
In short, it was claimed by appellant that the only consideration for the note in controversy was the true amount he owed the estate of Benjamin Freeman, and that the amount was in fact only $ 49, instead of the amount stated in the note, and that the amount of $ 107.93 was stated in the note by reason of the erroneous computation made by Cooper in not taking into account all the credits due appellant; that appellant had in fact paid all that was due upon the note before it was surrendered to him; that, being paid, he was lawfully entitled to the possession of the note, and did not unlawfully detain the same at the time of the commencement of this suit.
These facts were stated in the affirmative paragraph of answer, and the defence might properly have been made under the answer in denial.
The appellee was a witness in the case, and testified in his own behalf. He testified as to the note having been given to him by the appellant, and that afterwards the appellant came along by the residence of the appellee, and told appellee to go in and get the note and he would pay it; that appellee went into his house and got the note and computed the interest, and brought the note out where appellant was, and appellant asked to see the note, and he gave it to him. Appellant then asked the appellee what he claimed on the note, and he answered, the amount of the principal and interest. Appellant asked if he was sure he had made no mistake in his computation, and he answered he had not aimed to make any mistake; that nothing had been said about there being any mistake in the note.
The counsel for the appellant, in the course of the cross-examination, handed the witness, the appellee, a paper, showing a computation of amounts due on notes and accounts between appellant and the estate of Benjamin Freeman, showing the amount due the estate on November 25th, 1885, to be a balance of $ 68.57, which appellant claimed was in the handwriting of the witness, and asked the witness the following question:
showing the witness the statement and calculation. Objection was made and sustained, and the appellant excepted.
The counsel, proceeding, asked the witness:
"I will ask you whether that is your handwriting, and whether that is the calculation you made in the house while Low was out in the buggy waiting for you to return with the note?" Which was objected to by appellee, and objection sustained, to which ruling of the court in sustaining the objection ap...
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Snelling v. State
...in Jones v. Johnson (1878), 61 Ind. 257 (judge went to the jury room and 'enlarged a little' on the instructions); Low v. Freeman (1888), 117 Ind. 341, 20 N.E. 242 (judge sent written answer to question by jury), and the later case of Deming v. State (1956), 235 Ind. 282, 133 N.E.2d 51 (com......
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Brames v. Crates, 3-477A98
...as not to express the true agreement of the parties. Hollars v. Stephenson (1951), 121 Ind.App. 410, 99 N.E.2d 258. In Low v. Freeman (1889), 117 Ind. 341, 20 N.E. 242, a promissory note had been given in satisfaction of an account which had arisen from various transactions between the part......
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Purdy v. State, 377S224
...question should be given by calling the jury into open court, and not by written communication sent to the jury room. Low v. Freeman, (1888) 117 Ind. 341, 20 N.E. 242. Finally, the Supreme Court in the case of Quinn v. State, (1891) 130 Ind. 340, 30 N.E. 300, reversed a conviction where the......
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Jones v. Austin
... ... Ind.App. 408] in the above quoted statute) not to send the ... written instructions to the jury room, leaving it to the ... jurors to carry the instructions pronounced only in open ... court, as well as the evidence, in their memories ... Jones v. Johnson, 61 Ind. 257; Low ... v. Freeman, 117 Ind. 341, 20 N.E. 242; ... Farley v. State, 57 Ind. 331 ... Where ... there has been no misconduct, properly so called, but an ... irregularity has occurred through inadvertence, as in the ... instance now being noticed, and the court at the earliest ... opportunity ... ...