Rouyer v. Miller

• Decision Date: 30 December 1896
• Citation: 16 Ind.App. 519,45 N.E. 674
• Parties: ROUYER v. MILLER.
• Court: Indiana Appellate Court

16 Ind.App. 519

45 N.E. 674

ROUYER

v.MILLER.

Appellate Court of Indiana.

Dec. 30, 1896.

Petition for rehearing. Overruled.

*674For former decision see 44 N. E. 51.

GAVIN, J.

Impressed not only with the ability, but with the earnestness with which counsel for appellee urge their petition for rehearing, we have endeavored to give to the questions involved that further consideration which they demand, but are still unable to accede to the correctness of the positions assumed by counsel. The note in suit was dated in 1878, and was due in 12 months. December 8, 1880, the following indorsement was entered upon it: “Interest on this note reduced to eight per cent. from date, and time extended while the interest is kept paid to the present amount.” It is now contended that by virtue of this indorsement the time was so extended that the note was not due until appellee, by his tender, elected no longer to keep the loan, and that consequently no attorney's fees chargeable to him could be incurred prior to such default. It would be sufficient answer to this position to say that upon the original presentation of this cause no claim was advanced that by reason of this indorsement the debt was not due when the note went into the hands of Ayres & Jones, and that it is now too late for such contention to be heard. Passing that question, and any others that might be raised as to the merits of this contention, and assuming that, as claimed by appellee, there was no default upon his part, and no maturing of the note so long as the interest was kept down to the amount then due, the time of the extension had long passed by, and the note matured by reason of his failure to keep the interest down to that sum. According to the computation of appellee's counsel, attached to their original brief, the interest due December 8, 1880, was $222.44. According to the same calculations, the interest due July 31, 1886, was $224.17, and the amount due April 15, 1887, was $230.60. Thus there was default in the payment of interest at least twice prior to the death of the decedent.

It is urged that, since the evidence discloses but one subject of dispute prior to the tender, we should assume or infer that this was the only matter then in controversy. One objection to this position is that the evidence introduced does not purport to cover or include all that took place between the parties relative to the note before the tender. It shows, indeed, that there was a dispute...