Kingan v. Gibson

33 Ind. 53

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Frazer, J.

The appellee, by reason of Ms failure to deliver to the appellants, according to contract, certain hogs, which the appellee had purchased of one Oldham, became liable in damages to them to the extent of fifteen hundred -dollars. The appellee induced the appellants to take from him, in satisfaction of their damages, upon condition that the appellee would not sue Oldham’s estate, a horse worth one hundred and fifty dollars, by falsely aud fraudulently .representing to them that Oldham had failed to deliver the hogs .to the appellee as he had contracted to do; that damages for Oldham’s breach of contract could not be collected, Oldham being dead and his estate insolvent; and by promising to make no attempt so to collect damages from Old-ham’s estate. The appellants were ignorant of the condition of Oldham’s estate, and relied and acted upon, the representations of the appellee, the latter knowing them to he false. In truth, Oldham’s estate was solvent, and the appellee recovered from it twelve hundred dollars for Old-ham’s breach of contract. The appellants sued, alleging the foregoing facts in their complaint; a demurrer was sustained to It, and that ruling is before us for consideration. ■

The .satisfaction is alleged to have been npon condition that Oldham’s estate .should not be held liable, and it is .averred that this condition has been broken. There is, therefore, no satisfaction, according to the very terms agreed upon by the parties. We suppose that the condition was lawful, and we are not able to conceive of anj reason to justify us in disregarding it.

M. M. Ray, J. W. Gordon, W.. March, E. B. Martindale, and F. Knefler, for appellants. S. § A. Major, for appellee.

The case may be put shortly thus: A. is liable to B. in a large sum, and claims that O. is liable to him. B. will accept a.trifle from A. in full satisfaction, hpon condition, that A. will, forego the enforcement of his claim against C., and it is so agreed, the trifle being paid. A. afterwards violates the condition- and1 collects his demand of C. Now, it seems very plain that A. cannot say that B.’s demand is satisfied.

Reversed, with costs; cause remanded, with directions to overrule the demurrer.