Shade v. Creviston

• Decision Date: 11 January 1884
• Docket Number: 10,816
• Citation: 93 Ind. 591
• Parties: Shade v. Creviston et al
• Court: Indiana Supreme Court

93 Ind. 591

Shade v. Creviston et al

No. 10,816

Supreme Court of Indiana

January 11, 1884

Rehearing Date: March 6, 1884

Reported at: 93 Ind. 591 at 594.

From the Huntington Circuit Court.

Judgment reversed.

W. H Trammel and T. L. Lucas, for appellants.

J. C. Branyan, M. L. Spencer, R. A. Kaufman, B. F. Ibach and W. A. Branyan, for appellees.

OPINION

Elliott, J.

The complaint of the appellant is based upon a note and mortgage and is in the usual form. The first paragraph of the appellee's answer avers that the note and mortgage were executed to appellant's assignor for the unpaid balance of purchase-money of the real estate described in the mortgage; that the appellee William Creviston, by whom the note was executed, was a young man without knowledge of the value of "saw-mill property;" that appellant's assignor was an expert and knew the value of such property, and fraudulently represented that the saw mill, for which the note was executed, was of the value $ 2,300, "when he well knew the same was of the value of $ 800, and the appellee, relying on his representations and believing them to be true, did purchase the same;" it is also alleged that "the real estate without the mill was of the value of $ 150, and that the mill was of the value of $ 700, and that the appellees paid the assignor of the plaintiff in money, work, goods, lumber chattels and real estate the sum of $ 1,000, which he accepted in full satisfaction of all of said debt, and that such satisfaction was had and agreed upon before notice of assignment."

We think the paragraph is good, although it is very badly drawn. We place our decision on the ground that it shows an accord and satisfaction prior to notice of the assignment by the payee of the note. The note is not a negotiable one, and the defence pleaded is available against the assignee, because it is shown to have existed before notice of assignment.

The second and third paragraphs of the answer are substantially the same. It is alleged in each of them that while Hubbell, the payee, was still the holder of the note and mortgage, a suit was brought on one of the series of notes executed by the appellees and secured by this mortgage and assigned to one John Kenower; that Hubbell and the appellees were made parties to that suit; that a decree of foreclosure was rendered and sale made under it; that after the sale Hubbell verbally agreed with the appellees, that if they would not redeem the land he would treat the money and property which they had previously paid and delivered to him as a full satisfaction of his claim and would release them from liability, and that he would protect himself by redeeming from the sale on Kenower's decree and would not hold the appellants personally liable on any of the notes; that they did not redeem from the sale, but suffered title to be acquired by the purchaser.

These answers were good. The right of a debtor to redeem is a valuable one, and its surrender constitutes a sufficient consideration to support a contract. McOuat v. Cathcart, 84 Ind. 567. Hubbell's promise made before assignment bound his assignee Shade. Such a contract is not within the statute of frauds. Landers v. Beck, 92 Ind. 49; Butt v. Butt, 91 Ind. 305; Rector v. Shirk, 10 Ind. 719; Stephenson v. Arnold, 89 Ind. 426.

There was no error in refusing to strike out the interrogatories propounded, on cross-examination, to Hubbell. The admissions of the holder of a non-negotiable note, made while he is still the holder of the note, are admissible against his assignee.

As to many of the questions sought to be reserved on the rulings excluding and admitting evidence, it is to be said that they are not properly reserved. In order to reserve questions upon such rulings, it is necessary to state specific objections to the trial court, and to carry into the bill of exceptions the objections stated. City of Delphi v. Lowery, 74 Ind. 520 (39 Am. R. 98).

The second instruction given by the court does not state the law correctly, nor does the first upon the same subject given at the request of the appellees. The latter instruction is as follows: "The defendant in this case admits the execution of the note sued on, but says that the same was not given for a valuable consideration; that the same was given for a saw-mill property which the assignor of the note herein sued on sold to the defendant, which said assignor fraudulently represented to be of the value of $ 2,300; that the assignor was an expert in saw-milling, and well knew the said mill was not worth $ 2,300, and that the defendant was young and inexperienced in this business, and not conversant with the value of saw-mill property, and that he relied upon the statements of the assignor, and believed them to be true, and purchased said property, agreeing to pay therefor $ 2,300. Now, if the proof in this case shows that such statements were untrue, and this defendant relied on them as true, and that he was not a judge of the value of such property and the seller was, and this defendant has paid all that the property was worth at the time of the sale, you must find for the defendant."

It is a settled general rule that representations of value do not constitute fraud, and the case assumed by the instruction does not emerge from this rule. There were no confidential relations...