Zehner v. Kepler

• Decision Date: 06 June 1861
• Parties: Zehner and Another v. Kepler
• Court: Indiana Supreme Court

16 Ind. 290

Zehner and Another v. Kepler

Supreme Court of Indiana

June 6, 1861

APPEAL from the Wayne Common Pleas.

The judgment is affirmed, with 1 per cent. damages and costs.

J. B Julian, M. Wilson, J. S. Newman and J. P. Siddall, for the appellants.

O. P Morton and J. F. Kibbey, for the appellee.

OPINION

Worden J.

Suit by Kepler against Zehner and Custer The complaint contains two paragraphs. The first is upon a note made by the defendants to one Jacob Starr, and by him indorsed to the plaintiff. The second is in the nature of the common counts, for money had and received, and for goods sold and delivered. The defendants answered the second paragraph by general denial. There was no denial pleaded to the first paragraph, but to that the defendants answered: First. That Zehner was principal and Custer only surety upon the note. Second. That the note was given for a horse bought by Zehner of Starr, which was warranted by Starr to be sound, and a breach of the warranty is alleged. Third. That the note was given for a horse bought by Zehner from Starr, and at the time of the sale the horse was unsound and crippled, &c., which was well known to Starr, and that Starr falsely and fraudulently represented to Zehner that the horse was sound, and fraudulently concealed the unsoundness, &c. Replication in denial. Trial by jury; verdict and judgment for the plaintiff.

The defendants appeal, and assign several errors; such of which as are relied upon in the brief of counsel will be noticed.

The first error complained of is, that the Court permitted the note to be given as legitimate evidence under the second paragraph of the complaint. The bill of exceptions informs us that such was the fact, but it also informs us that the Court afterward corrected the error, by determining that the note was not proper evidence under that paragraph, ruling it out, and instructing the jury that it was not evidence tending to prove that paragraph. We do not perceive that the defendants were injured by the error, which was thus promptly corrected by the Court below.

The Court gave the following charges to the jury, which are claimed to be erroneous:

1. "There are two paragraphs in the complaint in this case. The first is on a promissory note therein copied. The defendants' answers to this paragraph are such that the note and the assignment thereof stand confessed, and your verdict should be for the plaintiff for the full amount of the note, with interest at the rate of 6 per cent. per annum, unless the defendants have succeeded, by a fair preponderance of the evidence, in establishing the truth of the second or the third clause of their answer."

6. "In the third clause of the defendants' answer, they allege that the plaintiff (Starr?) made certain false and fraudulent representations about the horse. A fraudulent representation, to entitle a party to defend successfully, must be false, and known to be false by the seller, at the time it was made, and be about a material part of the contract, and be relied on by the buyer. If there has been such representations in this case, the defendants had their election of one of two remedies; first, they had a right to tender the horse back to the seller, within a reasonable time after they discovered the fraud; and in that case, the plaintiff could not recover any thing: or, second, they might retain the horse, and claim a deduction from the note equal to the amount of damages which they have sustained by the fraud."

The defendants asked, and the Court refused, the following instruction: "That inasmuch as there was no evidence given to the jury under the first paragraph of the plaintiff's complaint, they can only find a nominal sum for the plaintiff under that paragraph."

The objection made to the first instruction given, and to the refusal of the Court to give the one asked by the defendants, goes upon the theory that the note was not offered or given in evidence under the first paragraph of the complaint. The record does not contain the evidence, nor does it appear, except by mere inference, but that the note described in the complaint was given in evidence under the first and proper paragraph.

A bill of exceptions shows that the plaintiff produced, and proved the execution of the note, and the indorsement thereof, and gave it in evidence under the second paragraph, and that it was afterward ruled out, as incompetent under that paragraph; but what was done afterward, or whether it was offered under the proper paragraph does not appear. But we will examine the charges on the assumed theory that the note was not given in evidence at all. The appellants claim that unless the note was given in evidence, nominal damages only could be recovered on the first count; and the objection to the first charge given is, that the jury were told that their verdict should be the amount of the note and interest, unless the defense was made out. We have seen that the execution and assignment of the note were admitted, because not denied, by the pleadings.

What necessity was there for the introduction of the note? It was not material to any of the issues formed. Had there been no pleadings in the cause except the first paragraph of the complaint and the answer thereto, the burden of the issues would have been upon the defendants, and they would have been entitled to open and close, because the plaintiff would not have been required to introduce any evidence in order to make out his case. The failure to controvert the making...