Rinehart v. Niles
| Decision Date | 16 February 1892 |
| Docket Number | 288 |
| Citation | 30 N.E. 1,3 Ind.App. 553 |
| Parties | RINEHART ET AL. v. NILES |
| Court | Indiana Appellate Court |
From the White Circuit Court.
Judgment affirmed, at appellant's costs.
S. P Thompson, for appellants.
T. F Palmer and W. Niles, for appellee.
This suit was brought to recover the balance alleged to be due on a promissory note for $ 840, bearing date March 30th, 1887, executed by the appellants to the appellee, due in one year after date.
Appellants answered the complaint in one paragraph. Appellee replied in three paragraphs: First. General denial. The second and third were limited to the appellant Rinehart only.
Appellant demurred to the second and third paragraphs of the reply for want of facts, which was overruled and exception saved. The cause was tried by the court, and the finding and judgment was for the appellee.
The errors assigned are the alleged errors of the court in overruling the demurrer to the second and third paragraphs of the reply, and in overruling the motion for a new trial. All of the causes assigned in the motion for a new trial are waived in argument, except the third and fourth, which alleged "that the finding of the court was not sustained by sufficient evidence, and that there was error in the assessment of the amount of recovery; said amount being too large."
The answer of the appellants was only as to a part of the note sued on, and alleged that a part of the consideration of the note was a mare purchased by the appellants of the appellee, described in a catalogue printed and published by the appellee, and fully set out therein; that the appellee, to induce the sale of said mare, placed the catalogue in the hands of the appellant Rinehart, who believed the description to be true, and relying on and believing that the mare was out of a standard horse, to wit, Duke of Lexington, purchased the mare for $ 250, as a producer of standard bred trotting colts when bred to a standard bred trotting horse, under rule 7 of the National Association of Trotting Horse Breeders, reading as follows: "The progeny of a standard horse out of a mare by a standard horse," and would not have purchased the mare had the representations not been made; that the mare was not in fact a descendant of Black Bashaw 782, as stated in said circular, and was not a standard producer when bred to a standard horse; that the appellants continued to rely on the statements of the catalogue until May 10th, 1889, when the mare dropped a mare colt by a standard bred stallion, and the appellants applied to have the colt registered under rule 7 as it then was, and learned that the mare was not a great-grand-daughter of Black Bashaw No. 782, and was incapable of breeding colts which could be registered in the American Trotting Register by reason of their breeding record; whereupon the appellants at once notified the appellee and offered to return said mare to appellee, but he refused to accept said mare; that the appellants also offered to pay the real value of said mare, to wit, the sum of $ 150, and take up said note, and appellee refused to make any reduction on account of said defect in the pedigree of said mare; that had the mare been bred as represented by the appellee she would have been worth $ 400, and bred as she is she was worth but $ 150. Wherefore, etc.
As we have seen, the second and third paragraphs of the reply were limited to the appellant Rinehart only. The second paragraph sets up that before the note came due, appellant Rinehart, by letter, acknowledged his liability on the note, and agreed that, in consideration of the extension of the time of payment of $ 500 of the principal for one year he would pay the interest on the note for one year and $ 340 of the principal, and at the end of the second year, would pay the remaining $ 500 with interest at the rate of 8 per cent, to which the appellee assented; and the appellant Rinehart made the partial payment as agreed, and the appellee accepted interest on the note for the first year at the rate of six per cent. instead of eight per cent., to which he would otherwise have been entitled by the terms of the note if it had not been paid when due, whereby the appellee sustained a loss and the appellants received a benefit of $ 16.80, and the appellee, in pursuance of the agreement, allowed the note to run another year.
The third paragraph of the reply sets up that on March 30, 1889, the appellant Rinehart, by letter, acknowledged his liability for the residue of the note, and paid the interest thereon for one year and $ 200 of the principal, and agreed that, in consideration of the extension of the time of payment of the remaining $ 300 to May 15, 1889, he would pay the same with interest on that date, and in reliance upon that agreement the appellee did so again extend the time of payment.
The appellee demurred to the answer of the appellants, which was overruled and exception saved, and insists in argument that as the demurrer searches the record, and the answer was bad,...
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