Sutton v. Baldwin

• Decision Date: 03 December 1896
• Docket Number: 17,873
• Citation: 45 N.E. 518,146 Ind. 361
• Parties: Sutton v. Baldwin
• Court: Indiana Supreme Court

45 N.E. 518

146 Ind. 361

Sutton v. Baldwin

No. 17,873

Supreme Court of Indiana

December 3, 1896

From the Cass Circuit Court.

Affirmed.

McConnell & McConnell, G. W. Walters and G. C. Taber, for appellant.

D. P Baldwin and McConnell & Jenkins, for appellee.

OPINION

Monks, J.

This was a proceeding brought by the appellant, April 8, 1895 under section 772, Burns' R. S. 1894 (760, R. S. 1881) to recover judgment against appellee for the amount at which certain real estate was sold to him by the sheriff on execution, with interest and ten per cent. damages and costs, on the ground that he had failed and refused to pay the same. At appellant's request, the court made a special finding of facts and stated conclusions of law thereon, "that appellee had paid the amount of his bid before the commencement of this action, and that he is entitled to a judgment against appellant for costs," to which conclusions of law appellant excepted. Over appellant's motion for a new trial, judgment was rendered in favor of appellee.

It appears from the special findings, "that appellant, as a redemptioner from a former sale of the real estate in question, caused a venditioni exponas to be issued by the clerk of the Cass Circuit Court and to be placed in the hands of the sheriff of said county, and the sheriff thereupon advertised the land to be sold on said writ on the 25th day of February, 1895. On the day of sale, the land was struck off and declared sold to appellee for $ 3,741.00, he being the highest bidder. The sheriff tendered a deed for said real estate to appellee, which he accepted and still retains; that at the time said deed was delivered appellee made out and delivered to said sheriff, in payment for his bid for said real estate, a check on the State National Bank of Logansport, Indiana, for $ 3,741.00, payable to Charles W. Hornburg, or order, which check the sheriff then and there accepted from appellee in payment of his bid for said real estate. Appellee had that sum of money on deposit in said bank subject to check on said February 25 and 26, 1895; that immediately before the delivery of the sheriff's deed and the check, appellee stated to said sheriff and his deputy that at that hour of the night it would be impossible for him to pay the amount of his bid in cash, and inquired of said sheriff if he was willing to accept his check in lieu of the cash; and said sheriff then and there stated and agreed that he would accept said check in lieu of so much cash; that appellee further stated to said sheriff, before the delivery of either the deed or the check, that he claimed $ 900.00 of the said $ 3,741.00, as junior encumbrancer of said land, and informed said sheriff that he was about to commence a suit against him to enjoin the payment of said $ 900.00 to appellant, and refused to deliver to him said check of $ 3,741.00 unless said sheriff would agree to hold said check until 10:30 a. m. the next day, so that he, appellee, might restrain the payment of said $ 900.00, to which the sheriff assented and agreed, and thereupon appellee delivered to said sheriff his check in the usual form on the State National Bank of Logansport, to the order of Charles W. Hornburg, and signed by appellee, for the sum of $ 3,741.00, and received a sheriff's deed for said lands; that, on February 25, 1895, between 10 and 11 o'clock p. m. of said day, the sheriff indorsed and transferred said check of $ 3,741.00 to the attorney for appellant, first informing him of said agreement made with appellee at 8:30 p. m. of said day, which check said attorney received for his client in payment of the judgment above set forth, both principal and costs; that said attorney, after receiving said check, paid to the sheriff with his personal check $ 414.28, that being the costs upon the above described judgment and execution. The next day, February 26, 1895, at 9 o'clock a. m., appellee, after learning that the sheriff had violated his agreement made the night before, notified the cashier of the State National Bank of Logansport, not to pay said check, which order has never been withdrawn by the appellee; that the check has never been returned or tendered to appellee, but is still outstanding and retained by the appellant or his attorney."

The general rule is that a check delivered by a debtor to his creditor does not extinguish the debt for which it is given. If such check is paid, it extinguishes the debt, otherwise not. Boyd v. Olvey, 82 Ind. 294, 301; 2 Daniel on Negotiable Inst. 577; 2 Parsons on Cont. 622.

It is settled by the decisions of this court that the giving of a promissory note, governed by the law merchant, for a preexisting indebtedness of the maker to the payee will discharge such debt, unless it is shown that the parties did not intend it to have that...