Prather v. Ross

Decision Date13 December 1861
Citation17 Ind. 495
PartiesPrather and Another v. Ross
CourtIndiana Supreme Court

APPEAL from the Jennings Circuit Court.

The judgment is reversed, with costs. Cause remanded.

H. C Newcomb and J. Tarkington, for the appellants.

A. C Downey and L. Bingham, for the appellee.

OPINION

Davison J.

This was an action by Ross, who was the plaintiff, against Prather and Tripp, upon a promissory note for the payment of $ 950. The note was given by the defendants to one George W. Cochran, who assigned it to the plaintiff. Defendants answered by two paragraphs: 1. Prather is the principal debtor, and Tripp executed the note as surety; that before it was assigned by Cochran, and before the defendants had notice of such assignment, he, Cochran, was indebted to Prather $ 850, by a written contract, in these words:

"Vernon, October 15, 1853.

"I, G. W. Cochran, Land Agent of the Ohio & Mississippi Railroad Co., agree to pay H. Tripp, six hundred dollars for waste grounds, which cover some eight town lots on the south side of the railroad; also, two hundred and fifty dollars for waste grounds and wood yard, (graded,) on the north side of the road, making a total of $ 850.

"Witness my hand and seal.

(Signed) "G. W. Cochran, [seal.]

Land Agent."

This contract is indorsed thus:

"Scripton, October 18, 1856.

"For value received, I assign the within to Hiram Prather.

(Signed) "Hagerman Tripp."

And defendants aver that Cochran is thus indebted to Prather, $ 850, which they offer to set-off, &c.

2. The second paragraph is also a defense of set-off, and is similar in its averments, except as to the contract which it sets up, which is as follows:

"Vernon, October 13, 1852.

"I, Geo. W. Cochran, Land Agent of the Ohio & Mississippi Railroad Co., hereby agree to pay Hagerman Tripp, the owner of the s. w. quarter of sec. 34, town. 7, north of range 8 east, in Jennings county, Indiana, $ 500, for right of way through the same for said railroad. This contract covers 80 feet in width; 40 feet on each side of the track. It is hereby agreed that said company shall not build or construct on said grounds any building, except car houses, depot and water station.

"Witness my hand and seal.

(Signed) "G. W. Cochran, [seal.]

Land Agent."

Upon this contract there is the following assignment:

"Scripton, October 18, 1856.

"For value received, I assign the within to Hiram Prather.

(Signed) "Hagerman Tripp."

To these defenses the plaintiff filed a general denial, and six special replies. To the second, fourth, sixth and seventh, demurrers were sustained. The third alleges, that the defendants had notice of the indorsement of the note to the plaintiff, before, or at the time of, the assignment of the contracts to Prather. And the fifth avers, that for the promises set forth in the contracts there was no consideration. The issues were submitted to a jury, who found specially, "That Prather, at the time the contracts were assigned to him by Tripp, had no notice of the indorsement of the note to the plaintiff." They also found a general verdict in favor of the plaintiff for $ 1,085; and the Court having refused a new trial, rendered judgment, &c.

Upon the trial, the note with its indorsement, and also the contracts with their assignments, having been given in evidence, the plaintiff produced George W. Cochran, who testified that he executed the contracts set up in the answers as the agent of the railroad company; and that the consideration of each contract was, that Tripp was to release, or convey to the company, in fee simple, the premises therein respectively described; but that no such release or conveyance had been made. The admission of this evidence was resisted, on the ground "That there was no issue to which such evidence was applicable." But the Court admitted the evidence, and the defendants excepted.

This exception, it seems to us, was well taken. If the defendant, Tripp, in breach of his contract, failed to release or convey to the railroad company the premises described, &c., the facts constituting such failure should have been specially set up in a reply to the answers, in order to apprize the defendants of what they would be required, upon the trial, to repel by proofs. Van Santvoord's Pl. 408. But the record before us contains no such pleading, and, in its absence, no evidence tending to prove his failure so to release and convey was admissible. It is therefore obvious, that upon the ground assumed by the defendants, the evidence, in this instance, should have been rejected.

The plaintiff having closed his testimony, the defendants offered to prove by one William D. Evans, a witness, that he resided in the neighborhood of the lands described in the contracts; that he is acquainted with the technical terms used in the construction of railroads, and that the terms, "waste ground," when used in railroad building, meant "earth or other material excavated from the bed of the road, and deposited on the ground adjoining. But the Court refused to admit the offered evidence, and the defendants noted an exception.

As has been seen, the contract pleaded as a set-off in the first paragraph of the answer, was for the payment to Tripp of six hundred dollars for "waste ground, which covers some eight town lots on the south side of the railroad; also, two hundred and fifty dollars for waste ground and wood yard, (graded,) on the north side of the road." Now, as there is nothing in the language of this contract necessarily involving the idea of a conveyance in fee simple, it was sought by the proposed evidence so to explain the terms in question, as to make the contract a mere settlement of the damages occasioned by depositing "earth or other material" on Tripp's lots, "and, perhaps, a license to use the wood yard as long as the railroad company might desire to use it."

For the purpose intended, the offered evidence may, or may not, have been effective, still it...

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