The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-06
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record, Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme Court-ApriI 4.

supreme Court-April 4.
Hon. William A. Woods, Chief Justice.
AGREEMENT TO PAY MoNEY-BENEFIcIARY.
7.403. George NJ. Cotton VS.. Cornelius Van
dervolgen. Carroll c. G.
Elliott, 1.-The complaint is founded upon the
Following instrument "Ghere is Gue TO &. w.
Cotton S3.O01 % with interest at per cent. per
annum from GATE. The above amount to be paid
IN such sums and to such parties he may desiS-
nate ST. 1918 is TO be retained in the hands or
NahderVolgen, Fisher Morrow TO protect them
against mortgage binding the hOur-mill lease
Tor the above amount. Vanderyoger, Fisher "
Morrow" The obligation was assigned to APP
pellant No third person could claim any right
under the instrument until designated az a bene-
hc1ary by the obligee. Tue promise is made to
the obllgee alone. The cause giving the right TO
the oblgors to retain 81, 1919 to protect them
against u mortgage binding the mill does not
contain promise to pay the mortgage. Inc
stipulation Is for the benefit of the oollgors not
Tor fbae OF the mortagagees, and confers no
rights upon tho latter. The direction of the
obligee to pay would confer no right
If, at the time it given, the full amount of the
note was paid, or the obligurs had In good faith
acquired detenses to the instrument. The APP
peLees might have acquired seJ-oH, at least
as TO the sum IL was provided they might re-
tain 10 protect them against the mortgage. TINS
stipulation for Sheir benefit they might renounce,
and discharge their Indebtedness by the acqusi-
tlon OF valid claims against the Obligee. 1t was
competent FOR the mortgages to prove that the
oblgor had designated them as persons to whom
payment should be made, but not to prove
verbal contempUraneous agreement that it was
the understanding Of the parties TINT the instru-
ment should have meaning different from that
which its language imports. Where a writing
elnoodles the agreement of the parties 1t speaks
for them, and in the absence of fraud or mistake
the language used measures and declares their
rights. Judgment affirmed.
RAILROAD FIREs-INTERvENING LAND OWNERS.
1887. L., N. A Il C. Railway Company VS..
August Krimming, Carroll q. C..
collars, J.-Where the allegations of a plead
ing are not specific enough the way to reach it
Is by motion to make more specific, and not by
demurrer. 81 Ind, 29T; &C i'd, 4221 The action
was for negligent fire started by appellant in
combustible material its right of way, and
communicated TO the appellees land. half mile
distant, The jury found that there was no neg
llSence on the part OF the intervening land own
ers and there was no intervening cause operat-
ing between the negligence of appellant and the
injury to the appellee. The injury was the nat
ural and probable consequence of the negligence
OF appellant, and such as might have been fore
seen in the light of Attending circumstances.
1906 81 U. s., 469; so Pa. St. 373J The question
81 negligence was passed upon by jury, and
there was evidence strongly tending to support
the verdict. Judgment affirmed.
DEMURRER-DEFEcr OF PARTIEs-CRoss-cos
PLANT
1851. Hiram Gardner va, Eden H. Fisher.
Noble c. C.
Nlblaek. IA demurrer for defect of parties
must specify the particular omission which con-
siltntes the defect % Ind, 297; AZ i'd, 21l)
~ While cross com plant must DO substantial
" suhclent TO support an aenon in favoring the
cross -cOmp lainant, independently of the com
plant vet in matters of mere description II may
refer to and adopt some of the allegations of the
complaint, particularly those with reference to
written instruments and copies thereof filed
with the complaint and common to both plead
ings. $50 Ind, 1926; 40 i'd, 253: "a i'd, %; 90
i'd, 259 90 i'd, 1856; "a i'd. 7lD 49, No copy of
the note need be filed with the complaint where
the action is simply to have The note delivered
up and Cancelled. a. The suit was by appellant
on note for $500, signed by Dodge,
Fisher d Dixon. Fisher filed cross
complaint alleging that the note was given
for money loaned to Dodge to build "a
hotel with, and setting mp written instru-
ment by which IL was agreed that Fisher IL
Dixon should receive the money and see that it
was all applied TO the erection of the proposed
building, and thar then the note should be
delivered IN and a new note and mortgage on
the building be taken; that the money had been
SO expended, and that Dodge had rendered the
mortgage, bat IT was not accepted. Appellant
answered that In order TO enhance the value Of
their property adjoining the village, Fisher d
Dixon had permitted aud encouraged Dodge to
build extravagantly, and that when he rendered
the mortgage the building was already IN
numbered by prior liens fer more than its full
value, etc. This answer was bad. No lmlta-
ton upon the discretion of Fisher q Dixon in
expendlpg the money was imposed, and there
was no stipulation that the property should be
free from incumhrances when the mortgage was
rendered. Judgment affirmed.
SALE OF REAL EsTATE-AGREEaIENT TO RE
PURCHASE
lo,252. Jno. W. Minor Va. Emiliue Vaughan
Woods, c. Vaughan purchased of Shoe
maker certain land for $1,000, giving
MS nbLtS eeCutGu W AOTtStRe on Iub ldnu LOT
the purchase money. ContemporaneOusly with
the deed, Shoemaker executed agreement in
writing that if Vaughan should die before the
notes were paid, and upon request of the heirs
Shoemaker would re2arehase the land for the
same price and upon the same terms. Three of
the notes paid before Vaughan died and the
others were assigned TO appellant. The court
gave the plaintiff judgment for the amount due
on his notes, and that there was due the heirs,
upon the agreement to repurchase. 81 ,2O4 which
was DECLARED a lien on the land prior appel
lantis mortgage. The notes were not negotiable
as inland Mills of exchange, and 1t follows that
| rs assignee of the notes appellant acquired no
rights superior TO those of shoemaker, and the
sum owed by him was properly declared u prior
lien the land Shoemaker having assigned
the notes, ana SO pnt 1t out of his power to ac-
cept Il tender of recOnVeyance, such tender was
unnecessary. The fact that Shoemaker
had parted with the notes was no Oh
stacle to the granting of relief
by the court when all parties concerned were
before it, and the rights of no innocent pur-
L l. IL LaAA-- II