Mount v. Dehaven
| Decision Date | 20 March 1902 |
| Docket Number | 3,498 |
| Citation | 63 N.E. 330,29 Ind.App. 127 |
| Parties | MOUNT, ADMINISTRATOR, v. DEHAVEN |
| Court | Indiana Appellate Court |
Rehearing denied May 21, 1902.
From Fayette Circuit Court; F. S. Swift, Judge.
Action by James I. Dehaven against James C. Mount, administrator of the estate of Theodore L. Griffis, deceased, on a claim based upon certain promissory notes. From a judgment for plaintiff defendant appeals.
Affirmed.
G. C Florea, L. L. Broaddus, R. Conner and L. Conner, for appellant.
G. L. Gray, F. E. Nevin, D. W. McKee, J. J. Little and H. L. Frost, for appellee.
Judgment in appellee's favor on a claim of two notes,--one for $ 1,600, with six per cent. interest, dated December 19, 1888, and due in one year; the other for $ 1,000, with like interest, dated January 30, 1890, and due in one year; both executed by appellant's decedent, Theodore L. Griffis, and payable to appellee. Theodore L. Griffis died May 6, 1890, leaving two sons and a widow who was a childless second wife. At the time of his death he was engaged in the retail dry-goods business, and was largely indebted. Soon after his death the two sons purchased the widow's interest in the whole estate and took charge of the entire estate conducting the store under the name of T. L. Griffis' Sons and undertook to settle the estate without administration. On December 19, 1890, the two sons executed to appellee a note for $ 1,696, due in one year with seven per cent. interest, signed by T. L. Griffis' Sons and by each son individually, in lieu of the note for $ 1,600 executed by T. L. Griffis, the old note being delivered to the sons. On September 8, 1892, they executed to appellee a note for $ 1,052, due in six months with six per cent. interest, signed by the same parties, in lieu of the note for $ 1,000, which was delivered to the sons. These notes were not paid when due, but were taken up by other renewal notes. Certain payments were made, but at the time of the trial there were two of these outstanding renewal notes, one for $ 930 dated July 2, 1895, and one for $ 1,058.83 dated January 27, 1896. An administrator of the estate of Theodore L. Griffis was appointed in April, 1898. None of the renewal notes given by the sons were notes governed by the law merchant.
The only question in the case is whether the acceptance by appellee of the renewal notes, executed in lieu of the original notes, extinguished the antecedent debt. One of the sons testified that at the time the first renewal notes were executed, and the original notes surrendered, "there wasn't very much said; we talked about the notes and I asked him how he wanted the notes fixed, and he said, 'any way, it don't make any difference,' and I said 'we had better agree on the time and renew the notes,' and he said, 'all right, any way to suit you will be all right;' I renewed the notes and there was never anything said about it afterwards." At the time of the surrender of the original notes witness thought appellee knew the sons were attempting to settle the estate without administration. The original notes were introduced in evidence. Across the face of the original note for $ 1,000 are the words "paid by renewal, T. L. Griffis' Sons, Sep. 8, '92;" and across the face of the note for $ 1,600 are the words and the maker's name on each note is crossed out. Appellee testified that he did not see any of these indorsements made.
In Tyner v. Stoops, 11 Ind. 22, 71 Am. Dec 341, the court said: . ...
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