Barnett v. Bullett

11 Ind. 310

• Court: Indiana Supreme Court
• Decided: December 10, 1858
• Status: Published

Opinion

Perkins, J.

Suit upon two instruments of waiting of similar tenor. The following is a copy of one of them:

“ This agreement, entered into this 30th day of November, A. D., 1852, between George W. Bullett and James Barnett and Jacob Barnett, is, that the said Bullett doth agree to pay to said Barnett 584 dollars, 65 cents, without any interest, as soon as he can, but is not to be pushed nor sued, nor to sacrifice property to pay it, nor to pay it inside of any limited time.” Signed by the parties.

The complaint avers the present ability of Bullett to pay the note, without a sacrifice of property, &c., and shows that the instrument was given upon a valuable consideration, viz., the conveyance of a tract of land.

The complaint was demurred to, and the demurrer sustained.

The ground upon wdiich the demurrer was sustained below, and upon which the ruling is supported by counsel here, is, that the instrument amounts to nothing — that it is a promise never to pay; but we do not so interpret it.

The legal import of the writing is, that Bullett will not agree to be sued, or to have his property sacrificed to pay the sum named, or to pay it within a limited or fixed time; but that he will pay it as soon as he can — that is, as soon as he is able to do so without such sacrifice.

The complaint is sufficient.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.