
    No. 9782.
    Cottrell v. Gammon et al.
    Promissory Note. — “Amount Due.” — Instruction.— Consideration.— Warranty. — In an action on promissory notes, where the defences thereto are want of consideration and a breach of the warranty made on the sale of the property for which the notes were given, it is not error to instruct the jury that the “notes are undisputed as to * * the amount due,”, followed by a statement of the defences, the word “due” meaning due according to the terms of the notes.
    From the Vigo Circuit Court.
    
      It. Dunigan and W. W. Bumsey, for appellant.
    
      N. G. Buff and _D. T. Morgan, for appellees.
   Bicknell, C. C.

This was an action upon two promissory notes given for a self-binding reaper.

The defences were want of consideration and a breach of warranty. There was a reply in denial. Upon a trial by jury, the plaintiff had a verdict for $142. Judgment was rendered upon the verdict, over a motion for a new trial, and the defendant appealed, assigning for error the overruling of the motion for a new trial.

The -causes for said motion were:

1st. That the finding of the jury is excessive.

2d. That the verdict of the jury is not»sustained by sufficient evidence.

3d. Error in giving to the jury, at the request of the plaintiff, instructions Ros. 1, 2, 3, 4, 5, 6, 7, 8 and 9, and in refusing instructions Ros. 1 and 4, requested by defendant. The damages were not excessive.

As to the second, there was evidence tending to support the verdict; therefore, the verdict can not be disturbed. Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73; Becker v. Denmure, 78 Ind. 147.

As to the .third cause for a new trial, the objection urged'' against the first instruction given by the court, at the request of the plaintiff, is that the court assumed as true one of the facts in dispute.

The court, in stating the case to the jury, said : The notes bear eight per cent, interest from date, and are undisputed as to their execution and the amount due; the defendant resists payment of these notes on the ground that the machine so bought of plaintiffs was represented and warranted to be'of a certain character, and that it was not in fact as represented and warranted, and that it was of less value on that account, and that the defendant has been damaged by reason of defects in the machine, and by expenses and loss of time in repairing the same.”

The appellant claims that the court ought not to have said that the amount due was undisputed — that such a statement had a tendency to mislead the jury; but it had no such tendency ; it was substantially a statement that there was no dispute about the execution and tenor of the notes, followed by a statement of the defence thereto. The word “ due,” as used in this instruction, means due according to the terms of the notes, the execution of which had been admitted by the defendant.

There was no error in the instructions given, and there was no error in refusing the instructions asked for by defendant, or in overruling the motion for a new trial.

The judgment of the court below ought to be affirmed.

Per Curiam. — it is therefore ordered, on the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellant.  