Jones v. Clark

9 Ind. 341

• Court: Indiana Supreme Court
• Decided: June 9, 1857
• Status: Published

Opinion

Perkins, J.

Suit by Jones against Clark and Cullen.

The complaint alleges in substance that the defendants fraudulently, &c., obtained from the plaintiff 100 dollars, by agreeing to invest it in lands in Texas, &c., as evidenced by a written agreement, over the name of Clark, which reads thus, and is made a part of the complaint:

“ #100. Received of Philip C. Jones, Esq., of Shenandoah county, the sum of one hundred dollars, to be appropriated to the purchase of lands in Texas, in the republic of Mexico, in connection with myself and others, or to be returned to said Jones, except his equal proportion of the expense of sending two agents to that country to explore it. This receipt entitles said Jones to an equal proportion with the balance of the company, of all lands purchased by their agents, John M. Cla/rk and John Cullen, for said company. Oct. 13th, 1835. John M. Clark.”

The suit was commenced in March, 1855. The complaint denies that any of the agents went, or intended to go, to Texas; but, on the contrary, that they left Virginia, where the contract was made, with the money, and invested n jn ian¿is in Indiana, for their own benefit.

jE. A. Greenlee, for the appellant (1).

To this complaint the defendants answered that the cause of action mentioned therein did not accrue within six years before the commencement of the suit.

The plaintiff demurred to the answer, assigning for causes—

1. That the answer did not contain matter sufficient to bar the action.

2. That the action was upon a written agreement to which the. six years’ limitation law did not apply, but that of twenty years.

The Court overruled the demurrer, and gave final judgment for the defendants.

It seems to us that the action may fairly be regarded as upon the written agreement; and hence, that the answer was insufficient. By the writing, the money was to be returned, if not expended in the way proposed, &c. The demurrer should have been sustained.

Whether the evidence will be sufficient to authorize a recovery against the defendants jointly, a future trial must determine.

Per Curiam.

The judgment is reversed with costs. Cause remanded for further proceedings in accordance with this opinion.