Rogers v. Lewis

19 Ind. 405

• Court: Indiana Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Perkins, J.

Lewis sued Rogers upon a promissory note. Rogers gave the note to Sylvanus H. Tarkington, from whom it passed, by assignment, to the plaintiff.

The defendant, Rogers, answered, that he gave the note to Tarkington in consideration that William JD. Alexander should make to him, Rogers, a deed for a lot in Gosport; that Alexander executed to him a bond for a deed, but had failed to execute or tender it; and that the lot had been sold, on execution, for Alexander’s debt. The plaintiff replied by the general denial; and also specially averring, that the note was not given in consideration that Alexander should make a deed to Rogers; but, in consideration that Tarkington should relinquish to him, Rogers, the equitable interest he had in, and the right he had to require a deed from Alexander to, the lot in question; that he made the relinquishment; that Rogers procured a bond for a deed from Alexander, which he might have enforced, but neglected to do so; that he received possession of the lot, from which he had not been evicted, etc., and might still enforce his title from Alexander, and those claiming through him, by means of his bond, as the possession of the lot by him, Rogers, was notice, etc.

Trial by the Court. Judgment for the plaintiff. The cause is here upon the evidence. Three witnesses were examined. The testimony of two of them, if believed, taken by itself, proved the defendant’s answer. The testimony of one of them, Tarhington himself, if believed, taken by itself, proved the plaintiff’s reply.

McDonald and Roache, for the appellant. Newcomb and Tarhington, for the appellee.

Here was a conflict of evidence; and the rule is, in such case, that, where the evidence of the winning party, taken by itself, will support the judgment rendered, it must be affirmed.

An attempt was made to impeach Tarhington, but no evidence, legitimate to the impeachment, was given. No witness examined knew his character, at the time 'of trial, or for three years previous. The testimony should go to the character at the time of the trial. 2 Gt. & H., p. 171, notes.

Per Curiam.

The judgment below is affirmed, with one per cent, damages and costs.