Haggerty v. Johnston.

& Barnett; that the appellant became a partner with Barnett, having purchased the interest of Winebrenner; that Barnett made the indorsement on the back of the note without any authority, and without appellant's knowledge or consent, and that appellant received no consideration whatever for the making of said indorsement; that appellee knew that the appellant had no part of the consideration of said note, and that he had not consented to the endorsement or contract thereon made; and that the appellee and Barnett treated it as Barnett's individual debt by the appellee's taking a mortgage on the individual property of Barnett, to secure the payment of such note.

4. That the appellant and Barnett were partners; that by their partnership agreement the firm was not to borrow money or to become liable for borrowed money; that the notes in suit were given for money loaned by the appellee to Barnett for his own use and benefit, and not for the benefit of the firm; that Barnett executed a mortgage on his individual property to seeure the indebtedness, and that in consideration of Barnett's agreement to convey a lot to appellee and pay off a prior mortgage of three hundred dollars, appellee agreed to release the firm from any liability on said notes; and that said lot had been conveyed and accepted by the appellee, who still retained the possession thereof, and the said three hundred dollars secured by the said prior mortgage had been paid.

A demurrer was overruled to the second, third, and fourth paragraphs of the answer, and the cause was put at issue by a reply in denial.

The cause was submitted to the court for trial, and resulted in a finding for the appellee. The court overruled a motion. for a new trial, and rendered judgment on the finding.

The appellant has assigned for error the overruling of his motion for a new trial.

It is claimed that the court erred in overruling the motion to suppress the eighth and ninth questions and answers in the deposition of Winebrenner, which were as follows:

"Question 8. What were the terms and conditions on which

Haggerty v. Johnston.

you sold your interest in said partnership to defendant Robert J. Haggerty? and state whether defendant Barnett knew of your sale, its terms, and conditions, and consented thereto.

Answer 8. I sold my interest to defendant Robert J. Haggerty for twenty-five hundred dollars, and he assumed with Barnett to pay all the partnership debts, and I was to be released by defendant Haggerty from all partnership debts. Defendant Barnett knew of my sale and its terms and conditions, and consented thereto.

"Question 9. State particularly what arrangement or agreement was made as to payment of debts of Winebrenner & Barnett, who was to pay the same, whether the old firm or the new firm, and if not either, then who was to pay the same.

“Answer 9. The new firm was to pay all debts. The defendant Barnett was present when I sold to Robert J. Haggerty. The agreement at that time was that the new firm of Haggerty & Barnett should assume and pay up all the debts of the old firm of Winebrenner & Barnett."

It is contended by counsel for appellant that the agreement sought to be established by the above questions and answers is within the statute of frauds. It is argued that the above evidence does not bring this case within that class of cases where one person agrees to pay his own debt by paying the money to a third person, because the appellant did not agree to pay a certain sum for the interest of Winebrenner in the partnership, and that instead of paying it all over to Winebrenner, he agreed, as a part of the purchase price, to pay certain specified debts. While it is not expressly testified that the appellant agreed to pay one-half of the firm debts as a part of the consideration of his said purchase, we think the agreement amounted to that, in substance. The appellant agreed to pay twenty-five hundred dollars in money to Winebrenner, and assumed to pay his share of the firm debts. We think it plainly appears that the agreement of the appellant to pay one-half of the firm debts constituted a part of the consideration of his purchase. He, therefore, agreed to pay his own debt, but instead of paying directly to Winebrenner, he agreed

Haggerty v. Johnston.

to pay certain debts to third persons. It is the settled law of this State that, a party not known as a contracting party, but for whose benefit the contract was made, may maintain an action thereon. Miller v. Billingsly, 41 Ind. 489, and authorities there cited.

In our opinion, the present case falls within the principle enunciated in Hardy v. Blazer, 29 Ind. 226, which ruling seems to be fully supported by the authorities there cited. Maule v. Bucknell, 50 Pa. St. 39.

The case of Shoemaker v. King, 40 Pa. St. 107, mainly relied upon by counsel for appellant, seems to be somewhat in conflict with the rule established in this State by the cases of Hyer v. Norton, 26 Ind. 269, Cross v. Truesdale, 28 Ind. 44, and Hardy v. Blazer, 29 Ind. 226, and the cases therein cited, but we think we would better adhere to our own line of ruling.

Having reached the conclusion that the parol agreement of appellant to pay Winebrenner's share of the firm debts was not within the statute of frauds, we need not decide whether the agreement entered on the note by Barnett was binding on the firm.

It is next insisted that the finding of the court is not supported by the evidence. The point most relied on is, that it is not shown that the agreement to pay the firm debts constituted a part of the consideration of the purchase. As has been seen, we have reached a different conclusion.

It is further claimed that the evidence does not show that the agreement of the appellant included the debt due the appellee. The appellant testified that he agreed to pay all the partnership debts which had been created for goods, but that he did not agree to pay debts created for borrowed money. Winebrenner, on the other hand, testified that appellant agreed to pay all the debts of the firm, without reference to the character of the indebtedness. The question of the credibility of these witnesses was fairly submitted to the jury, and we can not disturb such finding.

There was no error in overruling the motion for a new trial. The judgment is affirmed, with costs.

Turpin et al. v. The Eagle Creek, etc., Gravel Road Co. et al.

TURPIN ET AL. V. THE EAGLE CREEK AND LITTLE WHITE
LICK GRAVEL ROAD COMPANY ET AL.

GRAVEL ROAD.-Articles of Association.—A statement of the length of a proposed gravel road is not required by the statute of 1852 (1 G. & H. 474) to be inserted in the articles of association.

SAME.-The line of the route of the road, and the place to and from which it is proposed to construct the same, should be stated in the articles of association; but the designation of the route need not be very specific, for the reason that the exact location of the road is to be, or may be, fixed by the directors of the company.

SAME. In designating the line of the route and the termini of the road, it is not
made necessary by the statute to use the name of the state and county, or
either of them. Articles of association stating that the company is organ-
ized by citizens of the State of Indiana, under and in pursuance of its laws,
and giving the beginning point in a section, township, and range, which
the court will judicially notice is within a county of this State, and
defining the course and distance, sufficiently show the county and State in
which the road is located.

SAME.-Assessors of Benefits.—It is the duty of the board of county commis-
sioners, by the act of May 14th, 1869, to appoint three frecholders, one
from each commissioner's district, to assess benefits for the construction of
gravel roads; and when the county board has granted a petition for the
assessment of such benefits, it is the duty of the county auditor, without
any special order to that effect, to notify the assessors to proceed, and to
report their assessment, etc.
SAME.-Presumptions.-The order of the board of commissioners for an assess-
ment need not name the assessors. They may be presumed to have been
previously appointed by another order of the board, and it will be pre-
sumed that the assessors possess the required qualifications, and it need
not be stated in the order granting the petition that they do.
SAME.-Assessor's Oath.-By the statute, the assessors are required to take an
oath of office. They take that oath for all cases referred to them, and it
is not necessary that they should be sworn in each case.
SAME.—Assessor's Report.-The statute provides for an assessment by two of
the assessors, under certain circumstances; therefore, in an action to enjoin
the collection of an assessment made by two assessors, it will be presumed,
where the contrary is not shown, that such circumstances existed as to make
it proper for two of them to act.
SAME.-Assessor's Affidavit.-The affidavit of the assessors to their report need
not be subscribed by them. Where an affidavit is not required by a statute
or some rule of court to be subscribed, it is sufficient if it is shown by the
jurat of the proper officer to have been sworn to. (PETTIT, J., dissented.)
SAME.-Extent of Assessment.-Assessors have no authority to assess benefits

Turpin et al. v. The Eagle Creek, etc., Gravel Road Co. et al.

to lands lying beyond their own county; consequently, where one of the termini of the road is at a county line, it is neither necessary nor proper for them to assess benefits against lands lying beyond such terminus. CONSTITUTIONAL LAW.-The constitutionality of the statute authorizing assessments for gravel roads has been often affirmed by former decisions of this court, and is no longer an open question.

From the Hendricks Circuit Court.
C. C. Nave, for appellants.

L. M. Campbell, C. W. Smith, and R. O. Hawkins, for appellees.

DOWNEY, J.-This was an action by the appellants against the appellees, to enjoin the collection of an assessment made on the lands of the appellants for the construction of the road of the company, under the act of May 14th, 1869.

The defendants filed a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was sustained by the court. This ruling of the court is assigned as error, and under that assignment the questions arise which are discussed, and which we are called upon to decide.

It is first contended, that the articles of association of the company are invalid, because they do not state the length of the proposed gravel road, and the county or counties in which or through which the same was to be located, and the State in which the road was to be made. The statute relating to the subject is the first section of the act of May 12th, 1852. 1 G. & H. 474. It provides that the parties wishing to organize such a company shall unite in articles of association, setting forth: 1st. The name which they assume. 2d. The line of the route and the place to and from which it is proposed to construct the road. 3d. The amount of capital stock, and the number of shares into which it is divided. 4th. The names and places of residence of the subscribers, and the amount of stock taken by each. A statement of the length of the road is not required by the statute. It is true that the same section of the statute provides, that whenever the stock subscribed amounts to the sum of five hundred dollars per mile of the proposed road,