Tibbetts v. Thatcher

• Decision Date: 15 December 1859
• Parties: Tibbetts v. Thatcher
• Court: Indiana Supreme Court

14 Ind. 69

Tibbetts v. Thatcher

Supreme Court of Indiana

December 15, 1859

A Petition for a Rehearing of this Case was Filed on the 8th of February and Overruled on the 8th of May, 1860.

From the Dearborn Court of Common Pleas.

The judgment is affirmed with 5 per cent. damages and costs.

B. J and P. L. Spooner, for appellant.

D. S Major, for appellee.

OPINION

Davison J.

The appellee was the plaintiff below, and the appellant defendant.

The complaint charges that John Tibbetts, on the 21st of March, 1837, made his promissory note whereby he promised to pay Isaac Jones, at twelve months, 37 dollars 50 cents, and that Jones on the 14th of September, in the same year, assigned the note to the plaintiff; that the defendant, on the 27th of April, 1838, agreed with the plaintiff, in writing, that he would pay the plaintiff the said note, and would also pay him 10 per cent. interest thereon until it was paid; but in drawing up said agreement, the defendant, by mistake, omitted and left out of the same the promise to pay the note, and only inserted therein the promise to pay 10 per cent. interest thereon. The agreement as drawn up reads thus:

"Mr. Elijah Thatcher: I will pay 10 per cent. on that note given to Isaac Jones by John Tibbetts, for 37 dollars 50 cents, from the first of March last until paid. [Dated] April 27, 1838. Benjamin Tibbetts."

The relief prayed is that the agreement be reformed and the mistake corrected, and that the plaintiff have judgment, &c.

Defendant demurred to the complaint on two grounds--

1. It does not state facts sufficient to constitute a cause of action.

2. It fails to show any consideration for the promise alleged to have been made by the defendant.

The demurrer was overruled and thereupon the defendant answered by a general denial.

The cause was submitted to the Court for trial, and, upon final hearing, it was adjudged that said agreement be reformed and said mistake stand corrected, so as to read that defendant should "pay said note of 37 dollars 50 cents and 10 per cent. interest thereon from the first of March, 1853, until paid." And further, it was adjudged that plaintiff recover of the defendant 112 dollars 50 cents, being the amount of the note and interest computed at 10 per cent. from the first of March, 1838.

The second ground of demurrer, namely, that the complaint fails to show a consideration for the written promise alleged to have been made by the defendant, involves the only question to settle in the case. Outside of the contract in suit, the complaint alleges no consideration, and unless the contract on its face, imports a...