McDermott v. Deither

Yanderburgh, J. This action is brought to recover the amount due on a promissory note, executed by one Melady to plaintiff, and dated June 13, 1887. 'The complaint alleges that, after the execution of the note, the defendant entered into a written contract with Melady, and thereby, for a valuable consideration, promised and agreed to pay the note to plaintiff. The answer consists of denials, and the plaintiff, upon affidavits to which was annexed a written agreement identified in the record as “Exhibit B,” moved to strike out defendant’s answer as sham, and his motion was grantedi Exhibit B is the writing relied on to sustain plaintiff’s allegation of defendant’s agreement to pay the note. It does not expressly refer to^ the note, and on its face appears to have been given in consideration of the purchase by the defendant of partnership assets of the firm of Melady & Howes; and the defendant thereby agrees to pay the outstanding partnership debts, being about $2,015; and also the individual liabilities of the partners, being $913 and $1,620, respectively, as estimated; it being also, however, expressly stipulated in the contract that the liabilities so assumed by the defendant should not exceed in all the sum of '$4,548. The plaintiff claims that he would be entitled to introduce the agreement Exhibit B in question in evidence, under the allegations of the complaint, on. the ground that it necessarily involves an undertaking and obligation to pay the note in suit. But, conceding that he might do so, we are of the opinion that the defendant might, under his answer, show the extent of the indebtedness therein assumed, the amount thereof paid, and the [88] limitation of bis liability, in consequence thereof. His liability to pay the note was qualified and limited, and-not absolute, as alleged in the complaint.. It certainly was not entitled to a preference over other debts, and defendant might prefer other claims, if there was not enough to pay all, or apply the amount agreed to be paid pro rata. Had the plaintiff been more particular in setting up the nature of defendant’s agreement, the latter would doubtless have been compelled to be more specific in his answer. As the case stands, however, we are not satisfied that the answer was interposed in bad faith, or that it is clearly and indisputably shown to be sham. Judgment vacated, and order reversed.