Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1851-12-25
Decisions of the Supreme Court of Indiana.
NOVEMBER TERM. 1851.
REPORTED FOR THE STATE SENTINEL By l. BOIL
Wrn~rsr.x Nov OF L

( Debt a note executed by Gorham to Reeves and
others, payable the 10Th day Of August, 1910. Two
pleas in bar fled The first states that the consid
Grafton of the note was that the 10Th day Of August
l84I the defendants ould execute Gorham a deed in
Tee simple for certain OF land describing IT'D
and averrng, that that day they did not execute
offer to execute, such deed, although that day, and
ever since, he has been ready and willing TO pay them
if they would make said deed. The second plea alleges
that said Reeves &C., falsely and lrauduenty repre-
scented themselves to said Gorham TO be the owners in
fee simple of said of land etc. and AYERS that
the time said executed, they, nor either OF
them, such owners, and never since have been,
etc.
/ general demurrer was filed to the first plea, and
sustained 10y the court below To the second plea, a
replication filed, stating that they (Plantlis below
and their wives the owners in fee OF said land To
this replication there general demurrer, which the
Circuit Court overruled. Judgment given for the
plaintiffs below.
Judge BLAcKFoRs held
l. That although the note sued upon was payable one
year before the conveyance to have been executed.
yet the suit was not commenced until after that time,
the note could not be treated independent contract
Blackf BAL And as the conveyance was not execu-
ted offered alleged by the plea the 18th day of
August, lS4l, recovery could be had on the note
The plea was, therefore, good. Smiths r. 245
2 That the replication to the second plea was bad
general demurrer, because it does not state chen they
owners of the land Under it, they might have
proved ownership any time before the filing Of the
replication. 1t should have averred' such ownership to
have been the 18th day of August lS4l for If they
not then, they could not have complied
with their contract
Judgment reversed, etc.
Nichlaus rs Roach & Long Appeal from the Jcfer
son c. Court.
Nchaus was sued upon note executed by him to
Roach Long To this action he pleaded, that IN lS47
he and one Dammit were Mariners and as such partners
became indebted, by balance of account to Roach s
Long; that whilst indebted, they dissolved their part
nership, Dapput agreeing pay said baance that e
forwards, Roach & Long took the note Of Dapput for
said balance account, upon which they obtained 4
judgment against him. which remained in full force and
dissatisfied That afterwards, Roach s. Long falsely
represented to the defendant Nchlaus that said bal
had been paid by Dappu that they had
taken his note, recovered Judgment against nor
settled the any other manners that the said de-
endant being ignorant of these things and not having
opportunity Of seeing Dapput, and con6dng in the
reprcser taons made to him by Roach & Long, their
request executed TO them, for said balance accounts
the note upon which this suit was brought.
To this plea demurrer filed, which the court be-
low sustained and judgment was rendered for Roach
Long.
Judge BLACKBOARD held:
L. That the plea good, for the defendant, Mich
aus discharged from liability for the partnership
debt, by the plaintiffs obtaining judgment against
Dapput on his note, which they had taken from him.
The partnership debt Joint debt, and not joint
and several There was, therefore, but
Of action for such debt, upon which but judgment
could be rendered. This question had been decided in
recent case in the English Court of Exchequer King
Y. Hoare, 10 Mus. and Welsby 494.
q That il not necessary here to decide, whether
the defendant although thus discharged from all iab-
ty would not have made himself again liable by the
giving ol his note If false representations had been
made TO him for the representations referred to in the
plea being in relation to material facts, and which in
dGced the defendant TO give the note sued upon must be
regarded as good bar to the present suit
Judgment reversed remanded with instructions
to permit the plaintiffs TO reply to the plea
Mckinney rs spunger. Appeal from the Decatur c.
Court.
Assumpsit for work and labor Seven pleas filed,
among them were that on the 9th day oi March, 1914,
the Revised Statutes were filed in the Clerks Office OF
the Decatur Circuit Court, aid that the defendant did
not within five years next before that time, at
time within five years before the of this
suit undertake, &C. that the Of action did not
crae within five years before the said 9th day Of March,
sc.
The Court below rejected this last plea being sub
stantialy the same as the other.
To the first of the above pleas, the plaintiff replied,
that; in May, 1910, suit in chancery commenced
for the of action, decree obtained, but on
the Dist February 1874 the Supreme Court dismissed
his bill without prejudice and that this suit was CON-
menced within year after the decree was revised.
This replication demured to- but the demurrer
ruled; Trial and Judgment for tie plaintiff.
Judge SMITH held,
J. That the above pleas identical, Tor the prom
ises laid the declaration being all implied promise
could arise until the cause of action accrued.
2 That the demurrer to the replication correctly
overrued for the Of limitations Of the Revised
Code of 1888 contains provso that if in any Of the
tons therein named judgment be given for the plaintiff
and afterwards reversed for error new action may he
this provso in the spirit OF the act embraces chancery
suits, and merely suits at law contended by the
defendant below, although the Of action relied
not have been proper subject OF chancery Jurisdic
ton.
On the trial of the cause it shown that the plain
tiff had built house for the defendant which COM
menced under special contracts that it not finish
ed at the time specified but the plaintiff without olec
ton by the defendant continued TO work afterwards
that when the work abandoned the defendant took
possession of the house. which still incomplete; that
the progress of the work alterations of the orig
inal plan were made by the agreement of the parties
that portion of the work detective and not exec=
ted in a workmanlike manner, &c.
The Court below instructed the Jury that the de-
PENDANT after the time specified in the contract for the
completion of the house. suffered the plaintiff proceed
with the work but before its completion he required him
TO quit the plaintiff ought to the reasonable raj
of the work done and materials furnished if the de-
PENDANT had the and benefit of them.
Held, That this Instruction erroneous, the PLATA
till being entitled to compensation equal to the
benefit the defendant had received and his right to
did not depend upon the question whether the work
was finally abandoned at the requirement OF the defend
anti the plaintiff entitled to have the value Of
paid under other circumstances for that would be
fair criterion Of their value to the deendant7 Hend
121 "a Hend, 60; % Hend, 665; u Pick, 547 The
measure OF damages in such case stated by Mr. Chit
y to be 'the stipulated price, less the which it
would take complete the work according the agree
ment "-Chitty on Con-, 493 sth Am. Ed.
And in this case, the plaintiff to be compensa-
ted by receiving the conveyance OF lot OF ground, the
of damages should have been the value of the
lot he was to have received deducting therelrom the
amount necessary to make up the deficiencies in the
pletion of his contract.
The Court below also instructed the jury that it. after
making the written contract the defendant agreed by
paro alterations in the plan Of the building the
81 the agreement in matter and he plaintiff finished
The work according TO the alterations though he could
rot the written contract he could the
value of the work.