Falkner v. McIlroy

11 Ind. 510

• Court: Indiana Supreme Court
• Decided: January 14, 1859
• Status: Published

Opinion

Per Curiam.

Falkner sued McIlroy upon a written contract which reads thus:

“ This is to certify that I have received of Chester Falkner a deed for a house and lot in the village of Prattsburg, Indiana, which is to be returned to said Falkner, provided I shall, after I advise with my lawyer, find it not expedient to retain the same. If I do retain the deed, then I am to give Falkner a note of 500 dollars, which I hold on Moses Cooper, of Texas. [Signed] George R. McIlroy.”

The complaint avers that defendant failed to perform, &c., in this, that he kept and retained said deed, and failed to return it to the plaintiff, although a reasonable time to advise with his lawyer has elapsed, &c.; and that on the 10th of December, 1854, he, plaintiff, demanded said note of the defendant; but he neglected and refused to deliver the same according to said contract, &c. It is averred that the note and interest thereon is worth 600 dollars, &c.

The defendant’s answer contains three paragraphs—

1. A general denial.

2. The second alleges, generally, that the consideration of the contract has failed, &c.

3. And the third avers that defendant tendered to the plaintiff the deed in the contract mentioned, within a reasonable time after receiving it, and he brings the same into Court for the plaintiff, &c.

Eeplies in denial of the second and third paragraphs. Verdict for the defendant. New trial refused, and judgment.

The errors assigned relate alone to the sufficiency of the evidence. We have examined it carefully, and are of opinion that it tends to sustain the verdict. The conclusion of the jury will not, therefore, be disturbed.

There is, however, another ground upon which the judgment should be affirmed. The appellant has filed no brief in the ease, and for that reason the errors may be consid' ered as waived. See rule 28 of this Court.

I. W. Robinson, for the appellant. J. W. Chapman and J. B. Meriwether, for the appellee.

The judgment is affirmed with costs.