Porter v. Dearinger

33 Ind. 155

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

Opinion

Gregory, C. J.

A demurrer was overruled to the fourth paragraph of the -complaint; and this is the first error -complained of.

The paragraph shows, substantially, that the defendant was indebted to the plaintiff in the sum of three hundred dollars, for a balance due on the exchange of property; that, in consideration of the oral agreement of the defendant that he would convey certain real estate to one Holtzman, the latter assumed to pay the debt to the plaintiff' and executed his note therefor, which the plaintiff' received in full satisfaction; that the defendant refused to make the conveyance to Holtzman, thei’eby rendering the note void; that Holtzman was insolvent, without the lot, at the time of the transaction, and so continued to be up to the time of suit brought.

As between the plaintiff and Holtzman the consideration of the note was the release of the defendant by the plaintiff The failure of the defendant to convey the real estate to Holtzman was no defense to the note payable to the plaintiff. Henry v. Ritenour, 31 Ind. 136.

There is nothing averred in the paragraph to take the case out of the general rule. The court below erred in overruling the demurrer.

The evidence fails to make a case against the appellant.

The court erred in overruling the motion for a new trial.

Judgment reversed, with costs; cause remanded, with direction to sustain the demurrer to the fourth paragraph of the complaint, and to grant a new trial, and for further proceedings.