Stanley v. Stanley

• Decision Date: 14 October 1887
• Docket Number: 12,959
• Citation: 13 N.E. 261,112 Ind. 143
• Parties: Stanley v. Stanley
• Court: Indiana Supreme Court

13 N.E. 261

112 Ind. 143

Stanley v. Stanley

No. 12,959

Supreme Court of Indiana

October 14, 1887

From the Madison Circuit Court.

The judgment is affirmed, with costs.

C. L Henry, H. C. Ryan and E. P. Schlater, for appellant.

M. S Robinson and J. W. Lovett, for appellee.

OPINION

Mitchell, J.

This action was originally commenced in the name of William L. Montgomery, as trustee for Emma Stanley, against Jacob Stanley. It was a suit upon a bond executed by John and Jacob Stanley, conditioned that John Stanley should marry and provide for Emma Sutton, and maintain the child of which she was then pregnant, begotten of her body by John Stanley; and further, that he would furnish Emma Sutton, his intended wife, with a suitable home, and treat her as a husband should. The bond stipulated, among other things, that if John Stanley failed to perform the conditions thereof, or should by his misconduct give the obligee a legal cause for divorce, then, and in either event, the obligors therein should pay to the obligee, as stipulated and liquidated damages, the sum of fifteen hundred dollars. The bond was executed July 1st, 1882. John Stanley married the obligee, but, in all other respects, the complaint alleges, violated the conditions of the bond. He died in December, 1882. Montgomery, the trustee, brought suit on the bond, and recovered judgment against Jacob Stanley for the stipulated damages. From that judgment an appeal was taken to this court. The judgment was reversed and the cause remanded. Stanley v. Montgomery, 102 Ind. 102, 26 N.E. 213.

After the case went back an amended complaint was filed, in which Emma Stanley was substituted as plaintiff in the place of Montgomery, trustee. In all other respects the amended complaint was substantially the same as that originally filed. The plaintiff below recovered judgment at the second trial.

The first question presented by the record arises upon the appellant's motion for judgment on the answers of the jury to special interrogatories, notwithstanding the general verdict. The answers show that no demand was made upon or notice given to the appellant, Jacob Stanley, before bringing suit. The latter, it is argued, occupied the relation of a guarantor, and hence was not liable to be sued without notice of the non-performance of the conditions of the bond, and a demand. This position is not sustainable. If it be conceded that the appellant occupied the position of a guarantor, it does not follow that there should have been either notice or a demand before bringing suit. If loss results to a guarantor on account of a failure to give notice of the non-performance of the contract guaranteed, the fact of loss, and the failure to give notice, constitute matters of defence. There was no issue involving any question of notice or demand. Ward v. Wilson, 100 Ind. 52; Furst, etc., Mnfg. Co. v. Black, 111 Ind. 308, 12 N.E. 504, and cases cited.

During the progress of the trial it became a question whether or not John Stanley was, after the execution of the bond, in the habit of becoming intoxicated, and whether he had not, while in that condition, presented himself at the place of his wife's residence. The appellee having been called as a witness in her own behalf, and referring to...