Turner v. Young

27 Ind. 373

• Court: Indiana Supreme Court
• Decided: November 15, 1866
• Status: Published

Opinion

Ctregory, J.

Tamer sued Young and Young on a promissory note. The defense was want of consideration. The issue was tried by a jury. Verdict for the defendants. The plaintiff moved for a new trial, on the ground that the verdict was contrary to law and evidence. The only question presented by the record is, does ' the evidence support the finding?' On the 15th. of June, 1861, William C. Young borrowed of James Turner, the appellant, one thousand dollars in gold, and executed to him his two several notes, with Robert F. Young and Allen Kinworthy his sureties, one of which is as follows: “On or before the 25th day of December next, we, or either of us, promise to pay James Turner, or order, five hundred dollars, for value received of him, to be paid in twenty dollar gold pieces, with interest from date, without any relief from valuation or appraisement laws whatever. This 15th day of June, 1861.” The other is the same, except as to the time of payment.

On the 25th of March, 1862, Turner obtained a judgment against Young and his sureties on these two notes for one thousand and fifteen dollars. John V. Young became replevin bail for the stay of execution. In January, 1863, Turner agreed to extend the time of payment of the judgment for one year, Young agreeing, at the expiration of the time, to pay the judgment in gold; and to induce Kin-worthy to allow the judgment to stand, Young executed to him a deed for a lot in Thorntown, as an indemnity against his liability. Kinworthy executed a bond to Young, .conditioned to re-convey the lot on the payment by the latter of the judgment. On the 28th of December, 1863, Turner sued out an execution on the judgment, which came to the hands of the sheriff' the next day. On the 17th of February, 1864, Young’s wife paid to the sheriff the full amount of the judgment, interest and costs, in legal tender notes, which were received by the sheriff:' in full satisfaction of the judgment, and so returned by him to the clerk. Young demanded a reconveyance of the lot from Kinworthy. The latter refused to reconvey unless Young would satisfy Turner for his promise to pay the judgment in gold. After the judgment was paid, and before Kinworthy reconveyed the lot, the note in suit was executed by William G. Young, with Robert F. Young, his surety, to Turner, for one-half of the. difference between the value of gold and of the legal tender notes thus paid. Upon Kinworthy being informed by Turner that he was satisfied, the former reconveyed the lot to ' Young’s wife. The only consideration as between Turner, the payee, and the makers of the note, was the premium on the gold. Kinworthy demanded nothing for himself, but refused- to make the reconveyance unless Young would comply with his contract to Turner to pay the gold.

A. J. Boone, M. M. Bay, J. W. Gordon and W. March, for appellant. O. S. Hamilton and G. G. Galvin, for appellees.

In the suit on the notes, the measure of damages was not the value of one thousand dollars in twenty dollar gold pieces, but one thousand dollars with interest from date. Thayer v. Hedges et al., 23 Ind. 141. The judgment was therefore for the amount legally due. The payment to the sheriff in legal tender notes was a satisfaction of the judgment. The appellant received all the interest for the forbearance that the law allowed him to take. He could not have legally contracted for a greater l'ate of interest, either directly or indirectly. There was therefore no consideration for the note in suit in the case at bar, there being no debt due, but at most a mere dispute and controversy existing respecting it. Edwards v. Baugh, 11 Meeson & Welsby 641. Kinworthy was bound, under his bond, to re-convey the lot to Young. The conveyance to Young’s wife was not the consideration of1 the note in suit; at least the jury were warranted in so finding under the evidence. Turner’s own testimony was to the effect that the consideration of the note in question was one-half the difference between the value of gold and the legal tender notes paid to the sheriff in satisfaction of the judgment.

The case of Edwards v. Baugh, supra, was’ recognized and followed' by this court in Jarvis v. Sutton, 3 Ind. 289.

The judgment is affirmed, with costs.