Zimmerman v. Judah

• Decision Date: 05 December 1859
• Citation: Zimmerman v. Judah, 13 Ind. 250 (Ind. 1859)
• Parties: Zimmerman v. Judah
• Court: Indiana Supreme Court

13 Ind. 250

Zimmerman v. Judah

Supreme Court of Indiana

December 5, 1859

From the Marion Circuit Court.

The judgment is reversed with costs. Cause remanded.

L Barbour, J. D. Howland, H. W. Ellsworth and S. A. Colley, for appellant.

Counsel for the appellant cited Miller v. Stewart, 9 Wheat 681; Arlington v. Merricke, 2 Saund. 403; Pearsall v. Summersett, 4 Taunt. 593; The United States v. Boyd, 15 Pet. 187; Chit. on Cont. (7 Am ed.) 529; Ad. on Cont. 670; Bangs v. Strong, 7 Hill 250; Holland v. Hatch, 11 Ind. 497, and cases referred to in text and note; McMicken v. Webb, 6 How. 292; Nisbet v. Smith, 2 Bro. Ch. 579; Rees v Berrington, 2 Ves. Jr. 540; Boultbee v. Stubbs 18 Ves. 20; Croughton v. Duvall, 3 Call 69; Hill v. Bull, 1 Gilm. 149; Brigham v. Wentworth, 11 Cush. 123.

D. Wallace, J. Coburn, J. L. Ketcham and I. Coffin for appellee.

Counsel for the appellee cited, as to gratuitous indulgence, Alcock v. Hill, 4 Leigh 622; Love v. Jones, 4 Watts 446; Hall v. Constant, 2 Hall 185; Reynolds v. Ward, 5 Wend. 501; Hall v. Franklin, 3 Mees. and Welsb. 268; Lyon v. Holt, 5 id. 250; U. S. v. Simpson, 3 Penn. 439. They also cited Titus v. Scantling, 3 Blackf. 373; Harbor v. Morgan, 4 Ind. 158; Reed v. Coale, id. 283; 2 Pars on Cont. 193; 2 Scho. and Lef. 470.

OPINION

Perkins, J.

Suit upon a promissory note for 2,000 dollars, dated October 13, 1855, given by C. H. Brown, with C. Zimmerman as surety, to Samuel Judah, payable one day after date.

It appears by the answer of the defendant, Zimmerman, that at the same time that this note was executed, Judah and Brown entered into a contract, by which Brown was to erect for Judah a certain building, to be wholly completed ready for occupancy by the first day of November, 1856. The agreement fixes the amount to be paid, the time of payment, &c. The last clause of the agreement is as follows:

"5th. As to the balance, 2,000 dollars, it is agreed as follows: Said Judah herewith advances to said Brown, as and for a loan on a note payable one day after date, the said sum of 2,000 dollars, which note shall be satisfied by the completion of said building as in this contract is provided; and which note, also, shall not become or be payable so long as said Brown shall progress with the preparation of materials, and with the erection of said building, so as to warrant the said superintendent in the reasonable expectation of the progress and completion of the work, as is hereinbefore provided. October 13, 1855.

[Signed "Charles H. Brown,

"C. Zimmerman (surety),

"Samuel Judah."

It thus appears that the 2,000 dollars specified in the note sued on was substantially a penalty. If the building was proceeded with and completed according to contract, the 2,000 dollar note was never to be paid. If not, it was to be paid.

The answer further shows, that on the 5th day of June, 1856, the following further agreement was made without the knowledge or consent of Zimmerman, viz.: That said Brown and one Stokes should, by the 1st day of November, 1856, put an additional story on the building then under contract between Brown and Judah, for the further consideration of 1,700 dollars, to be paid on the completion thereof.

The answer claims that this agreement was such an alteration of the original agreement, as discharged Zimmerman, the surety.

The plaintiff demurred to the answer; the Court sustained the demurrer, and the plaintiff had judgment.

The record discloses nothing by which we can determine whether the contracts for erecting the building were fulfilled or not. The inference from this second contract is, that the execution of the first had satisfactorily progressed up to the 5th of June. 1856. And there is another letter from Mr. Judah, set out in the answer, dated September 10, 1856, which admits due exertion on the part of Brown in the execution of his undertakings. But the decision of the case here, must rest on the single point, as to whether the second contract above set out was such an alteration of the first as to discharge the surety for the performance of it; and we thus conclude:

The second...