Sweitzer v. Heasley

• Decision Date: 20 November 1895
• Docket Number: 1,729
• Citation: 41 N.E. 1064,13 Ind.App. 567
• Parties: SWEITZER v. HEASLEY
• Court: Indiana Appellate Court

41 N.E. 1064

13 Ind.App. 567

SWEITZER v. HEASLEY

No. 1,729

Court of Appeals of Indiana

November 20, 1895

From the Elkhart Circuit Court.

Judgment affirmed.

Chamberlain & Turner and Stephens & Stephens, for appellant.

R. M Johnson, for appellee.

OPINION

GAVIN J.

Appellant 's position is that a certain contract of compromise was ineffective and without consideration, because it is established by a long line of authorities, that the compromise of an unenforceable claim can form no consideration for a promise.

We do not regard this as a correct statement of the law in Indiana even if it be such in some jurisdictions. If the language used by the court in Jarvis v. Sutton, 3 Ind. 289, is to be given such a construction, which we very much doubt, it has been discredited by subsequent decisions.

In Thompson v. Nelson, 28 Ind. 431, there was in reality no legal claim, yet the party believed, and had good reason to believe, that there was. The compromise of the suit thereon was held a sufficient consideration for a note. The court says: "The most that can be claimed by the plaintiff, * * is that it was a doubtful one; and the compromise of a pending suit upon a doubtful claim is a good consideration for a promise."

In Harris v. Cassady, 107 Ind. 158, 8 N.E. 29, the court says: "It is not necessary that the claim asserted should be a legal one, but it is necessary that it must have some foundation in law or in equity. * * If the claim asserted by the appellants appeared to have any foundation, the cases of Henry v. Ritenour, 31 Ind. 136; Cronkhite v. White, 25 Ind. 418; Thompson v. Nelson, 28 Ind. 431, and Harter v. Johnson, 16 Ind. 271, would exert an important influence upon the case; but for the reason that the claim as stated in the special finding appears on its face to be foundationless, these, and kindred cases, can have here no controlling influence."

As expressed in Smith v. Boruff, 75 Ind. 412, "There must be at least a colorable ground of a claim, in law or in fact, to sustain an executory contract given as a compromise of it."

In Emery v. Royal, 117 Ind. 299, 20 N.E. 150 (305), it is thus stated: "The claim or demand must be one the enforcement of which in the courts is doubtful."

In U. S. Mort. Co. v. Henderson, 111 Ind. 24 12 N.E. 88, the supreme court, upon a consideration of the authorities, says, in substance: The claim compromised must have been at least doubtful, and there must have been some colorable ground of dispute and some legal or equitable foundation for the claim. In order that a compromise may constitute a sufficient consideration for the enforcement of an executory contract, there must have been an actual bona fide claim, founded upon a colorable right, about which there was room for honest doubt and actual dispute. As held in that case, and in Warey v. Forst, 102 Ind. 205, 26 N.E. 87, and Baldwin v. Hutchison, 8 Ind.App. 454, 35 N.E. 711, the mere belief of the complainant in his cause of action is not sufficient. If, however, to sustain a contract of compromise the party must show he had a valid and...