Sheets v. Russell

• Decision Date: 22 March 1895
• Citation: 40 N.E. 30,12 Ind.App. 677
• Parties: SHEETS v. RUSSELL.
• Court: Indiana Appellate Court

12 Ind.App. 677

40 N.E. 30

SHEETS

v.RUSSELL.¹

Appellate Court of Indiana.

March 22, 1895.

Appeal from superior court, Marion county; James W. Harper, Judge.

Action by Harry Sheets, administrator of the estate of Benjamin W. Dakin, deceased, against Isaac Russell. Judgment for plaintiff, rendered in the special term, was reversed in the general term, and plaintiff appeals. Reversed.

T. S. Rollins, for appellant. D. A. Myers, for appellee.

DAVIS, J.

On the 14th of July, 1883, appellee executed to Benjamin W. Dakin his note, due at six months, for $300, with 5 per cent. attorney's fees, and 8 per cent. interest until paid. This action was instituted on the note on the 11th day of January, 1893. No question arises on this appeal, so far as the first and second paragraphs of the answer are concerned. The third paragraph of the answer is as follows: “For further answer to the said complaint, by way of third paragraph, said Russell alleges that subsequent to the date of said note, to wit, on or about the ------ day of June, 1891, the defendant being financially embarrassed, and in failing circumstances, an oral agreement was entered into between said Russell and said Dakin, by the term of which said Dakin agreed to accept the sum of $300 as payment in full of all claims, damages, judgments, and notes which said Dakin held against said Russell. It was further agreed in said contract that the said Russell would employ him to work in and around his lumber yard, at the rate of $12 per week for the labor performed. Said Russell alleges that he employed said Dakin under the said arrangement, and did pay him in cash for all labor there performed up to the ------ day of December, 1892, when said Dakin, of his own accord, voluntarily quit work. Said Russell alleges that the labor thus performed by said Dakin in fact was worth only the sum of $9 per week, but as a part consideration in securing the cancellation of all of said notes, claims, and demands he paid said Dakin the extra $3 per week for his work. Defendant Russell alleges that the said $300 was to be paid when said Dakin quit work for him; that he offered him the said sum of $300 on the said date when he quit work, but that he refused to accept the same, and cancel his said obligation, and return the notes, including the one sued upon. Said Russell further alleges that he has paid said Dakin, since he quit work for him, and before this suit was commenced, the sum of $400; the same being more than is due him under his contract of June ---, 1891. By reason of the foregoing facts said Russell alleges that there is nothing due the plaintiff on said note; wherefore he prays judgment for costs and asks for all other proper relief.” A demurrer was sustained to this paragraph of answer by the superior court in special term. Judgment was rendered in behalf of appellant for $559.35. On appeal to general term the...