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Stebbins v. Goldthwait and Another.

payee, dies, intestate, and, there being no administration upon his estate, his widow, the note not having been made her property, assigns and indorses it in blank, and, the intestate having been largely indebted at the time of his death, his debts remain unpaid; or where, in addition to these facts, the maker holds a claim against the estate of the decedent, which in a suit by his administrator would be a proper set-off; in an action against the maker by one to whom the assignee of the widow has indorsed the note in blank, upon the note as if indorsed by the payce to the plaintiff, an answer, verified by affidavit, setting forth these facts and praying that the suit abate is good on demurrer.

SAME.-General Denial.-An answer of general denial not sworn to would not, under our code, put the plaintiff upon proof of the genuineness of the indorsement as shown by the complaint, or admit evidence of the facts set up in such answer in abatement.

APPEAL from the Grant Common Pleas.

FRAZER, J.—This suit originated before a justice of the peace. It was upon a promissory note made by the appellant, payable to one S. B. Campbell, and indorsed in blank by Campbell, and M. Stebbins, and George W. Stebbins. In this condition the note was filed as a complaint before the justice. When the cause came to the court of common pleas by appeal, a formal complaint was filed upon the note as if indorsed by Campbell to the plaintiffs, now appellees, and showing copies of the note and such an indorsement. The defendant then answered in two paragraphs verified by affidavit: First, that Campbell by indorsement assigned the note to one Jeremiah B. Stebbins, who afterwards and while holding the note died, intestate; that there was no administration upon his estate, nor was said note in any manner afterwards made the property of M. Stebbins, his widow; nevcrtheless, she assigned and indorsed the note to one George Stebbins, who assigned it to the plaintiffs; that Jeremiah B. Stebbins was largely indebted at the time of his decease, and his debts remain unpaid; wherefore the defendant prayed that the suit abate and be dismissed. Second, alleging substantially the same facts as the first, and also, that the defendant holds large claims against the estate of Stebbins, deceased, which in a suit by his administrator would be proper set-off, wherefore the defendant prayed that the

Coy and Others v. Stucker and Others.

suit abate. A demurrer was sustained to each of these an-swers, and it is claimed that these rulings were erroneous.

Upon the trial, the court gave leave to the plaintiffs to strike off of the note the indorsed names, " M. Stebbins" and "George W. Stebbins," and to write above the name of Campbell an assignment to themselves; to which the defendant excepted, and he now questions the correctness of that ruling here.

The note thus indorsed was the only evidence offered, and it was admitted over the defendant's exception.. After a finding for the plaintiffs, a motion for a new trial was overruled and a judgment rendered on the finding.

It is not pretended, on behalf of the appellees, that the facts pleaded were not a sufficient defense, but it is argued that the general denial which was in by statute (the case having originated before a justice of the peace) authorized the same proof. Such is not our opinion. The general denial not sworn to, would, under our code, have raised no question as to the genuineness of the indorsement as shown. by the complaint, and would not, therefore, have put the plaintiffs upon proof of it, or admitted the evidence of the facts set up in the answer.

Reversed, with costs, and remanded, with directions to overrule demurrer.

J. Brownlee, for appellant.

A. Steele and R. T. St. John, for appellees.

Coy and Others v. STUCKER and Others.

31 161 140 462

31 161 144 161

146 87

CONTRACT.- Practice.- Parties.-Written agreement as follows: "Whereas 31 161 there is an action now pending in the Bartholomew Common Pleas Court: 153 583 wherein A. is plaintiff and the undersigned and others are defendants,

VOL. XXXI.—11

Coy and Others v. Stucker and Others.

wherein said A. sues for money expended by said A. at their request in obtaining recruits under a call made by the President of the United States; and whereas the undersigned are desirous of compromising said cause and paying to said A. whatever sum may be found duc him; and whereas B., C., and D. are trying to compromise said cause and ascertain the sum due to said A., in order to pay the same to him; now, therefore, we, the undersigned, agree to and with said B., C., and D. that if they should compromise said cause and ascertain the amount due to said A., upon any compromise they may make, to pay to said parties or to said A. the proportional interest due from each of the undersigned as the ascertained amount due to said A.; and should said B., C., and D. agree upon the amount due to said A. and pay the same to him, or in any way satisfy the same, cach of the undersigned promise and agree to pay to him the proportional amount due from them, and severally promise to pay their several proportions of said amount that may have been so paid to said A., without relief from valuation or appraisement laws, and agree to indemnify them against all loss or damage in any way in making said compromise; and said B., C., and D. are left to compromise said cause in such manner as they may think best." Suit on this agreement against the signers thereof by B., C., and D., alleging a compromise by them with A. by giving him their note for a certain sum, which B. had paid with his own funds, &c.

Ield, that the defendants were properly joined in the same action. 'RELEASE. The fact that defendant E. paid a certain portion of a judgment against the plaintiffs on said note, and defendants E. and F. became replevin bail on such judgment, upon the agreement of B. to release E. and F. from liability upon the contract in suit, was a good defense as to E. and F., but not available as to the other defendants.

SAME. The release by the plaintiffs of any one originally liable in the action pending when the written contract was made, but not a party to such contract, could not avail as a defense to this action. PAROL EVIDENCE.-Contradiction of Written Contract.-It could not be sct up in defense to such suit on said agreement that there were other partics defendants in said action by A. than those who signed the agreement, and that plaintiffs agreed to get all said defendants to sign it, and failing to do so the agreement was to be void, and that it was upon that express condition it was delivered to plaintiffs. PLEADING.-Partial Defense.-Answers by certain of the defendants alleging that the indebtedness, to compromise which the contract in suit was executed, was one in which the plaintiffs were equally involved with the defendants, and pleading certain payments made by these defendants, and asking that they might be considered in fixing the final liability.

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Held, that the answers were good to the extent and purpose for which they were pleaded. COMPROMISE.-Doubtful Question of Law.-Answer by one of the defendants that there was a doubtful question of law as to his liability under the con

Coy and Others v. Stucker and Others.

tract in suit, and that a compromise was therefore made and a less sum given in discharge of a greater liability.

Held, that the answer was bad.

APPEAL from the Bartholomew Circuit Court.

RAY, J.-The appellants, Samuel Coy, William G. Whitcomb, and William T. Lee, sued Jeptha P. Stucker, John Long, Joseph Miller, William Gailey, William Long, John R. Lee, Hezekiah Wells, Benjamin F. Neville, William Doyle, John Becker, William H. Betz, Edwin C. Jones, John H. Kennedy, Alexander Pruitt, James A. Kennedy, Thomas R. Reaves, James Barnhill, and John Cobb.

The agreement upon which this action is based reads as follows:

"Whereas there is an action now pending in the Bartholomew Common Pleas Court, wherein Thomas J. Kennedy is plaintiff, and the undersigned and others are defendants, wherein said Kennedy sues for money expended by said Kennedy at their request in obtaining recruits under a call made by the President of the United States; and whereas the undersigned are desirous of compromising said cause and paying to said Kennedy whatever sum may be found due him; and whereas Samuel Coy, William T. Lee, and William Whitcomb are trying to compromise said cause and ascertain the sum due to said Kennedy, in order to pay the same to him; now, therefore, we, the undersigned, agree to and with said Coy, Lee, and Whitcomb, that if they should compromise said cause, and ascertain the amount due to said Kennedy, upon any compromise they may make, to pay to said parties, or to said Kennedy, the proportional interest due from each of the undersigned as the ascertained amount due to said Kennedy; and should Coy, Lee, and Whitcomb agree upon the amount due to said Kennedy, and pay the same to him, or in any way satisfy the same, each of the undersigned promises and agrees to pay to him the proportional amount due from them, and severally promise to pay their several proportions of said amount that may have been so paid to said Kennedy, without re

Coy and Others v. Stucker and Others.

lief from valuation or appraisement laws, and agree to indemnify them against all loss or damage in any way in making said compromise; and said Coy, Lee, and Whitcomb are left to compromise such cause in such manner as they may think best."

The first cause of action alleges, that in pursuance of said agreement, plaintiffs did compromise said action, by giving their note to said Kennedy for $2,385.98, and that the said Coy had paid the same with his own funds, of all of which the defendants had notice.

The second cause of action is the same as the first, except that it avers, that Coy paid $1,449.06 over and above all sums paid to himself, Kennedy, his co-plaintiffs, or any one else authorized to receive the money; that his co-plaintiff's had paid nothing; and avers notice and demand.

The point was made below and put in various shapes, that the agreement is a several one, binding the parties severally to pay only their proportional shares of the amount agreed upon by plaintiffs, and that therefore the defendants were improperly joined in the same action.

The first error assigned and considered by appellants is the action of the court on the demurrers filed to the second paragraphs of the several answers.

The second paragraphs of defendants' answers set up, that there were other parties defendants in said action by said Thomas J. Kennedy than those who signed said agreement; and that plaintiffs agreed to get all of said defendants to sign it, and failing to do so, the agreement was to be void and of no effect; and that it was upon that express condition and understanding that it was delivered to plaintiffs.

The third paragraphs of defendants' separate answers aver, that in consideration that the defendant John H. Kennedy would pay three hundred dollars on the judgment against plaintiffs on said note given to Thomas J. Kennedy, and that said John II. Kennedy and the defendants Neville and Pruitt would become replevin bail for the stay of execution on said judgment, said Coy agreed to release said de

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