Phelps v. Younger

4 Ind. 450, 1853 Ind. LEXIS 150

• Court: Indiana Supreme Court
• Decided: December 3, 1853
• Status: Published

Opinion

Roache, J.

Phelps sued Younger, as administrator de bonis non of Robert Woody, deceased, before a justice, and recovered a judgment. The following was the cause of action filed:

“Due Alpheus Phelps, from the estate of Robert Woody, deceased, seventy-nine dollars and eighty-eight cents. Jane 23, 1843. L. Woody, Administrator of estate of R. Woody.”

In the Circuit Court, the defendant filed several pleas, and gave notice of set-off. There was a trial by the Court, and judgment for the defendant. The evidence is set out in a bill of exceptions.

The testimony shows, that for some time previous to the death of Robert Woody, there was a mutual dealing between him and the plaintiff, which it does not appear was settled prior to the decease of the said Robert. It was also proved, that at the sale of the decedent’s effects, the plaintiff became a purchaser, but to what amount was not precisely fixed by the evidence, but exceeding 100 dollars. On the same day of the sale, the plaintiff gave the administrator a receipt, in general terms, for 117 dollars and 18 cents, and that was most probably what his purchases amounted to. The exact sum, however, is not material in the view we take of the case. This was the last item of account proved. The note on which suit is brought was executed ten months afterwards. There was no evidence showing that the note was given for any specific indebtedness.

It was prima facie evidence of a settlement of the mutual account up to its date, and that the amount specified in it was found due on such settlement.

Proof of a running, unliquidated account, consisting of a variety of items, all anterior to the date of the note, does not tend to show that the note was erroneously given, or that it had been paid; but rather tends to support it as showing the consideration on which it was founded—a balance found due on the adjustment of the unliquidated account.

To impeach a note founded on such a consideration, it is necessary to show some mistake or fraud in the settlement. As there was no evidence of either in this case, the finding and judgment of the Court below were erroneous.

G. G. Dunn, for the plaintiff. J. 8. Waits, for the defendant.

Per Curiam.

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