Pattison v. Jenkins

Elliott, J. The questions made- in the case for the consideration of this-court are all based on the refusal of the court to grant a new trial. One of the-reasons urged for a new trial is,that the verdict’is excessive. The note sued on was for the sum of six hundred’ and thirty-five dollars, with interest at the rate of ten-per cent. The verdict of. the jury included interest at the rate specified in- the note, and it is claimed by the appellants that as the note was given before the act of 1867, authorizing contracts in writing for interest at the rate of ten per cent, per annum, was enacted, the plaintiff'was only-entitled to recover interest at the rate of six per cent. This-position rests upon the assumption that the act of 1867 is not retrospective in its operation, and that the case is governed by the interest law in force at the date of the note, which prohibited a recovery of interest at a rate exceeding six per cent. We have heretofore held that the act in question applied to contracts made before its passage. Sparks v. Clapper, 30 Ind. 204; Klingensmith v. Reed, 31 Ind. 389. It follows that the jury did right in computing the interest at the rate of ten per cent., and hence the verdict was-not excessive. Another question made in the case is, that the verdict is not sustained by the evidence. It is insisted on behalf of the appellants,, that the evidence sustains the matters of defense setup in the first and third paragraphs of the answer, which entitles them to deduction from the amount of the note of four hundred dollars, that being one-half of the value of the articles claimed to have been included in the contract of sale upon which the note was given, but-which were not on the farm in Ah [92] abama, and never came to tbe appellants’ possession. The ■evidence in the case is quite lengthy, and only a small portion of it has been abstracted by the appellants, as required by the rules of this court. On the other hand, it is claimed that T. T. N. Pattison, one the appellants, after the memorandum or inventory of the property claimed to be on the farm by Igoe was furnished him, visited the farm, once at least, before the contract was concluded, for the purpose of seeing and examining said property; that he did examine it, and especially the corn, which was in a bulk in the husk, and he became satisfied that there was from three to four hundred bushels less of it than was claimed by Igoe, and that he afterwards agreed to give said Igoe $2,250 for his entire interest in the property on the farm, including, in addition to that named in said inventory, one thousand bushels or more of cotton seed, worth fifteen cents a bushel, ten hogs, and a lot of poultry. We have given the evidence a careful examination — in the absense of a proper abstract — because it was deemed proper to do so in connection with the 'questions raised on instructions given by the court to the jury; and, without giving a synopsis .of the evidence here, we deem it sufficient to .say in reference to it, that, whilst it is somewhat conflicting upon the material point in controversy, we think it clearly .sustains the verdict of the jury. The fourth instruction voluntarily given by the court, to which exception is taken, contains a fair and proper statement of the law .arising upon .the facts upon which it is hypothecated, and is pertinent to the evidence in the case. These remarks are alike applicable to the third and fourth instructions given by the court .at the request of the appellee, to which objections are urged. They assert the very clear proposition, that if, after the schedule of the property referred to in the answer was furnished by Igoe to T. T. N. Pattison, the latter visited the farm where the property was, and examined it, ns to quantity, .and after .such examina [93] tion, and relying on his own judgment, he contracted to pay Igoe $2,250, for his interest in the whole property on the farm, and executed the note for a part of the purchase-money, the plaintiff was entitled to recover the full amount due on the note. W. Morrow and N. Trusler, for appellants. B. K. Elliott and C. L. Holstein, for appellee. The first and second instructions given by the court at the request of the appellee, to which objections are also urged, are certainly correct, when applied to' the quality of the property sold, and also to the quantity when that fact is made to depend merely on the judgment, as wras evidently the case here as to the' corn, the principal item in controversy. And if they were not so- clearly applicable to the other items, still, in view of the other instructions given by the court and the evidence in the case, we think it evident that they could not' have misled the jury. The judgment is affirmed, with costs; and five per cent, damages.