Sterne v. Bank of Vincennes

Morris, C. — This suit was commenced in the Gibson Circuit Court, by the appellant against the appellees, for the purpose of being relieved from a judgment, taken in said court against Jacob W. Hargrove and Caleb Trippet, as principals, and the appellant as surety. The complaint is in four paragraphs. The appellees severally demurred to each paragraph of the complaint. The demurrers were sustained, and final judgment rendered in favor of the appellees. A cross complaint was filed by the bank against its co-appellees, Jefferson Turpin and John Sloan. The bank also filed a cross complaint against its co-appellees, William L. Hargrove, William M. Cockrum, James H. McConnell, Edward Rickard and John C. Blythe. These cross complaints were dismissed on the motion of the defendants to the same. The cross complaints are made a part of the record by bill of exceptions. The rulings of the court upon the several demurrers to the complaint are assigned by the appellant as error, and the Vincennes National Bank assigns, as cross error, the dismissal of its cross complaint. [551] The first, second and third paragraphs of the appellant’s ■complaint are the same as in the case of Sterne v. McKinney, post, p. 578. And, according to the rulings in that case, the court below erred in sustaining the demurrers to the first paragraph of the complaint. The demurrers to the second and third paragraphs were properly sustained. We think the fourth paragraph of the appellant’s complaint is substantially the same as the third. True, it is stated in the fourth paragraph that, by a contract made by the bank with Hargrove and Trippet, it agreed “that if the said Jacob W. Hargrove would procure one or more good and sufficient sureties to enter themselves bail for the payment of the one undivided half of said judgment, and if said Trippet would procure one or more good and sufficient sureties to enter them.selves bail for the payment of the other half of said judgment, ¡said bail to be accepted by the sheriff of said county, then said bank would extend the time of payment of said judgment, and withhold execution thereon, for the period of one year from said date of July 31st, 1875.” It is averred that this agreement was performed on the part ■of Hargrove and Trippet; that they procured the bail as stipulated, and that time was in fact given. It is insisted by appellees’ counsel, with much ingenious plausibility, that the question is not whether the contract of hail was valid or invalid as between the bail and the bank; "that the real question is, was the agreement between the bank ¡and Hargrove and Trippet based upon a sufficient consideration ? That to procure the thing stipulated for to be done, ■caused Hargrove and Trippet some trouble, some inconvenience, and that such trouble and inconvenience constitute a •sufficient consideration; that it was not necessary that any benefit should accrue to the bank. The argument is plausible, and, if such trouble and inconvenience constituted the real consideration contemplated by the contracting parties, it would be unanswerable. But it is quite obvious that this was mot the consideration in the minds of the parties at the time [552] the contract was made. It was not the purpose or intention of either of the parties to contract for this, trouble or inconvenience. The security of the judgment was the real consideration, and the inconvenience mentioned was merely incidental to the actual consideration for the promise on the part of the bank. The trouble or inconvenience which may result from the doing of an act, which is the consideration of a promise, is something different from the consideration itself. The motive for the promise on the part of the bank was the securing of its debt, a real and substantial benefit, not the trouble or inconvenience which its attempted performance might occasion Hargrove and Trippet. The judgment not having been secured, the bank was at liberty at any time to take out execution upon it. It is not shown in this case that by the return of the execution any lien on the personal property of Hargrove and Trippet was lost. We think there was no-error in sustaining the demurrer to this paragraph of the complaint. Nor was there any error in dismissing the cross complaints filed by the bank. Sterne v. The First Nat. Bank of Vincennes, post, p. 560. Pee Curiam. — It is ordered, upon the foregoing opinion, that the judgment below, sustaining the demurrer to the first paragraph of the appellant’s complaint, be reversed, at the; costs of the appellee. Niblack, J., was absent.