The demurrer was sustained, and judgment rendered for the plaintiffs; and on proceedings in error the judgment was affirmed by the circuit court.

Ferrall & Ohler, for plaintiff in error.

McElroy representing to said defendant that | ry to his said agreement, and for the purpose he, the said McElroy, had full authority to of defrauding said defendant, disposed of bind said company as its agent. It is ex- said note so that defendant might not be able pressly stated in said written agreement, ex- to make any defense thereto. Said agreeecuted and delivered by said McElroy to said ment by said McElroy to sell, or cause to be defendant, that the note given by said defend- sold by said company, said 80 bushels of oats ant to said T. J. McElroy should not be due has not been performed, although the time and payable, and the amount therein named has long since expired when said oats were to be called for, until said Bohemian Oats Asso- be sold, and said Jacobs retained 80 bushels ciation should sell for said J. W. Jacobs 80 of said oats, and still retains said oats, for bushels of Bohemian oats at $10 per bushel. the purpose of performing said contract on This said agreement was taken by said J. W. his part. The plaintiffs, defendant avers, Jacobs as a part consideration for the amount took said note with knowledge of said connamed in said note, which said Jacobs agreed tract between said McElroy and said defendto pay upon fulfillment of said written agree-ant; and defendant further avers that plainment. The only other consideration ever re- tiffs are not bona fide holders of said note. ceived by said Jacobs for said note was 40 Wherefore defendant asks that he may go bushels of oats, which were not worth more hence with his costs. than 40 cents per bushel when received. The terms of said written agreement have never been complied with, either by said T. J. McElroy or the said oat association. The plaintiffs, before their alleged purchase of said note, knew that said written agreement existed, and had full notice of the force and PER CURIAM, (after stating the facts as intention thereof, and defendant denies that above.) We think the court erred in sustainplaintiffs purchased said note before maturi-ing the demurrer to the answer of the defendty. Second defense. Said defendant says that the said note upon which this action was brought was obtained from said defendant by one T. J. McElroy, payee, by fraud, and was disposed of by said McElroy fraudulently, and that said fraud consisted of this, to-wit: The said T. J. McElroy, on or about the 9th day of December, 1884, represented to said defendant that he was the agent of the "Crawford, Henry & Williams County Bohemian Oats Association," and for the purpose of defrauding said defendant, and to obtain his signature to a promissory note, agreed to deliver to said defendant 40 bushels of so-called Bohemian oats, representing falsely that said oats were of an extraordinary quality and value, when in fact the said oats were of no more value than oats ordinarily raised by farmers; and, for the further purpose of defrauding said defendant, said T. J. McElroy represented and agreed, on the part of said company, that if said defendant would take said 40 bushels of oats, and deliver to said McElroy his promissory note for the sum of $400, that he, the said McElroy, would hold said note and not dispose of it until after said Bohemian Oats Company should sell for said Jacobs 80 bushels of oats out of the next year's crop, at $10 per bushel, and that said note would then, and not until then, have to be paid by said Jacobs. Said agreement by The case of Webb v. Spicer, 66 E. C. L. said McElroy on the part of said company 894, 898, 1s, when rightly considered, not in was in the form of a partly written and part- conflict with this holding. The point of that ly printed bond, and was delivered by said decision was that the written agreement was McElroy to said defendant concurrent with not between the parties to the note. Here, the delivery of said note, who, relying on the it is. The fact that the suit is not between said false and fraudulent statements of said McElroy, and believing that they were true, when in fact said false representations were made with intent to defraud said defendant by said McElroy, did sign said note, and deliver the same to said McElroy, who, contrav.22N.E.no.22-49

ant. The first defense is based upon the nonperformance of a contemporaneous written agreement, made and entered into by the parties in regard to the note, and of which it is averred the plaintiffs had notice when they became the holders of it. They then stand in the shoes of the original payee, McElroy. Although the note stipulates that it is payable 13 months after date, still this must be controlled, as between parties and holders with notice, by the written agreement; that it is not to become due and payable until the association has sold for the maker 80 bushels of oats at the price named. 2 Pars. Notes & B. 144, 534. It is not necessary that an answer should be returned to the question why the parties should have subjected the absolute stipulation of the note as to the time of payment to the provisional terms of the written agreement. It is sufficient to say that they have seen fit to do so, and the agreement is binding on the holder. The effect of it is to give the maker the right to pay the note according to its terms, or to decline to do so until the terms of the written agreement are complied with, if, in his judgment, it would be more prudent to do so. This branch of the answer, then, states a sufficient defense to the action,-non-performance of the agreement.

the original parties to the note and agreemendoes not affect the question, since the plaint tiff acquired his title with notice, and stands in the shoes of the original payee.

The second defense is based upon the alleged fraud of McElroy in obtaining the de

Judgment reversed, and cause remanded to the court of common pleas, with directions to overrule the demurrer, and for further proceedings.

fendant's signature to the note by fraudulent | March 1, 1885; for $400, due March 1, 1886; representations as to the value of the oats. $500, due March 1, 1887; $500, due March 1, As it is also averred that the plaintiffs took 1889; $500, due March 1, 1891; $500, due the note with knowledge of the fraud, the March 1, 1893,-and the appellants executed facts averred certainly constitute a defense, a mortgage upon the land therein described and the demurrer should have been overruled. to secure the payment of said notes. The Neither of these defenses show that the note falling due March 1, 1886, was assigned maker was a party to any contemplated fraud by indorsement to the appellee Noah Babbs, upon the public. If the averments be true, and the one falling due March 1, 1887, was and they are admitted by the demurrer, he assigned by indorsement to the appellee Carwas simply deceived into the belief that money oline Moore, and the remainder of said notes could honestly be made out of the introduc- were held by the payee, the appellee Alice M. tion of a new variety of oats, and the assump- Summers, at the commencement of this action that he was a party to any contemplated tion, and at the time final judgment was renfraud on others at the time he executed the dered in the court below. The appellee Noah note is inconsistent with the averments of his Babbs brought this action upon the note so answer. But if the assumption were true, indorsed to him, and to foreclose the mortstill the illegal character of the consideration gage, making his co-appellees and the appelmight be pleaded as a defense by the maker to lants defendants thereto. The appellee an action on the note by the other party, or Charles L. Summers has no interest in the any holder of it with notice. Complicity in subject-matter in controversy, but was made a wrong may defeat a party who, by action, a party for the reason that he was the husseeks to enforce an executory contract based band of the appellee Alice M. Summers. upon it, or to obtain affirmative relief against The appellee Caroline Moore filed a crossthe contract, as by injunction or cancellation; complaint upon the note held by her, and to but such complicity does not preclude a de- foreclose the mortgage. The appellee Alice fendant from pleading the facts as a defense, M. Summers, her husband joining therein, although he may be in pari delicto. Roll filed a cross-complaint upon all of said notes v. Raguet, 4 Ohio, 400; McQuade v. Rose- except the two which had been indorsed, and crans, 36 Ohio St. 442; Kahn v. Walton, 46 to foreclose the mortgage. To the complaint Ohio St. 195, 209, 20 N. E. Rep. 203. and cross-complaint Mrs. Stewart filed an answer. The first paragraph was a general denial. In the second paragraph she alleged coverture at the date of the execution of the mortgage; that she was the owner in her own right of the undivided one-half of the mortgaged land, and held title thereto; and that the mortgage was executed to secure the debt of her husband. The appellant Samuel Stewart filed an answer also, but, as it does not cut any figure in this appeal, we need not notice it again. Mrs. Stewart also filed a cross-complaint, alleging ownership to the undivided one-half of the mortgaged land, in which she averred that the appellees were asserting that they held a lien thereon by virtue of said mortgage, and demanded that her title be quieted. To the cross-complaint of Mrs. Stewart the appellees filed an answer, and to the second paragraph of her answer to their complaint and cross-complaint they filed a reply. The facts averred in the second paragraph of the reply are similar to those pleaded in the answer of the appellees to the cross-complaint of Mrs. Stewart, and present the same questions. The facts, briefly stated, are these: Mrs. Stewart and Mrs. Summers were sisters, and the owners jointly of the land described in the mortgage, and an additional tract adjoining of 70 acres, incumbered with a life-estate which their mother, Nancy Maples, held thereto. It was agreed between the three that Mrs. Stewart and Mrs. Summers would join in a conveyance conveying the fee in the 70-acre tract to Mrs. Maples, and in consideration therefor she would convey her life-estate in the mortgaged land to her daughters. At the same time it was agreed between the sisters that Mrs. Sum.

(120 Ind. 568)

STEWART et ux. v. BABBS et al. (Supreme Court of Indiana. Nov. 2, 1889.) MARRIED WOMAN'S CONTRACT-APPEAL-PARTIES. 1. Under Rev. St. Ind. 1881, § 5119, which provides that a married woman's contract of suretyship shall be void, a mortgage by husband and wife on land held by them jointly, to secure the husband's note given in payment for the land, is

void as to the wife.1

2. In a suit to foreclose such a mortgage, where neither fraud nor mistake is alleged, all oral understandings and conversations leading up to the written contract should be disregarded, as having been merged in the written contract.

3. Husband and wife, when joint parties to a suit, may jointly assign errors on rulings which

affect the wife alone.

Appeal from circuit court, Switzerland county; W. T. FRIEDLEY, Judge.

W. R. Johnston, F. M. Griffith, and L. O. Schroeder, for appellants. John B. Coles, for appellees.

BERKSHIRE, J. The facts of this case are about as follows: On the 6th day of February, 1883, the appellant Samuel Stewart executed to the appellee Alice M. Summers his several promissory notes as follows: For $300, due March 1, 1884; for $300, due

1 Concerning the power of married women to contract under the various statutes, see Jones v. Holt, (N. H.) 15 Atl. Rep. 214, and note; Nixon V; Whiteley, etc., Co., (Ind.) 22 N. E. Rep. 411, and

note.

conversations averred as leading up to the written contract.

Mrs. Stewart paid the consideration to her mother for the release of the life-estate on her undivided interest in the mortgaged land, and Mrs. Summers did likewise. The two then held the mortgaged land relieved of the life-estate, and the conveyance from Mrs. Summers and her husband and Mrs. Maples conveyed to Mrs. Stewart and her husband, Mrs. Summer's interest in the mortgaged land, and it was for this interest that the notes sued on were executed. The following statute was in force when the transactions in question occurred: Section 5119, Rev. St. 1881: "A married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner, and such contract as to her shall be void.' This statute has at all times been construed liberally in favor of the wife, and it has in many cases been held by this court that a mortgage on the wife's real estate to secure the husband's debt is within the statute. Allen v. Davis, 99 Ind. 216; Vogel v. Leichner, 102 Ind. 55, 1 N. E. Rep. 554; Warey v. Forst, 102 Ind. 205; Allen v. Davis, 101 Ind. 187; Brown v. Will, 103 Ind. 71, 2 N. E. Rep. 283; Cupp v. Campbell, 103 Ind. 213, 2 N. E. Rep. 565; Engler v. Acker, 106 Ind. 223, 6 N. E. Rep. 342; Crooks v. Kennett, 111 Ind. 347, 12 N. E. Rep. 715.

mers would convey her interest in the mortgaged land to Mrs. Stewart for $3,000, and that, pursuant to these oral agreements, Mrs. Summers and her husband, together with Mrs. Maples, joined in a conveyance conveying the mortgaged land to Mrs. Stewart and her husband jointly, and that the two sisters and their husbands joined in a conveyance conveying the 70-acre tract to Mrs. Maples; that the conveyance to Mrs. Stewart and her husband was made to them jointly by her direction, and in consideration therefor the notes in suit were executed, together with the mortgage; that on the same occasion, and immediately preceding the execution of the notes, something was said about Mrs. Stewart joining in the notes, but the notary public who was preparing the instruments remarked that it was unnecessary for her to do so, as the notes represented the purchasemoney for the undivided one-half of the land conveyed by Mrs. Summers, and that it would only be necessary for her to sign the mortgage, and hence she did not sign the notes. To the answer to her cross-complaint, and to the reply to her said answer, Mrs. Stewart filed separate demurrers, which the court overruled, and she excepted. She then filed a reply in general denial to the said answer to her cross-complaint, and the cause, being at issue, was submitted to the court for trial without the intervention of a jury. The finding of the court was for the appellees on all the issues joined. After the court announced its finding, the appellants filed their separate motions for a new trial, which were by the court overruled, and they excepted. The court then rendered judgment upon its finding, and a decree for the sale of the real estate. A motion was then made by Mrs. Stewart to modify the judgment and decree, but in view of our conclusion the ruling of the court upon this motion is unimportant. Neither fraud nor mistake is charged in the original pleadings of the appellees, nor in their answer to the cross-complaint of Mrs. Stewart, nor in their reply to Mrs. Stewart's answer of suretyship. It is well settled by a long line of decisions of this court that, where the parties reduce their contract to writing, all oral negotiations and stipulations are merged therein, and the writing must be treated as containing the whole contract. Carr v. Hays, 110 Ind. 408, 11 N. E. Rep. 25; Brown v. Russell, 105 Ind. 46, 4 N E. Rep. 428; Phillbrook v. Emswiler, 92 Ind. 590; Clodfelter v. Hulett, 72 Ind. 137; Walterhouse v. Garrard, 70 Ind. 400; McDonald v. Elfes, 61 Ind. 279; Mahan v. Sherman, 7 Blackf. 378; Harvey v. Laflin, 2 Ind. 477; Burns v. Jenkins, 8 Ind. 417; Plankroad Co. v. Stevens, 10 Ind. 1; Potter v. Earnest, 45 Ind. 416. When the deeds, mortgage, and notes were executed by the parties, the contract, as ultimately agreed upon, was to be found only in the writing, all precedent negotia-paid for by her. tions and stipulations being merged therein. In our opinion the court erred in overruWe therefore, in arriving at a conclusion, ling the demurrers to the answer of the aphave disregarded all oral understandings and pellees to Mrs. Stewart's cross-complaint,

Under the contract, as finally executed, Mrs. Stewart and her husband held title to the undivided interest conveyed by Mrs. Summers and her husband, and Mrs. Summers held the individual obligations of Samuel Stewart for the purchase money. The separate estate of Mrs. Stewart was not increased or benefited by the transaction. She and her husband held the estate by entireties, and his obligations having been accepted for the purchase money, the conclusion necessarily follows that the debt was his and not hers. What the result would be had she joined in the notes is a question not before us. We cite the following cases as upholding our conclusion: Dodge v. Kinzy, 101 Ind. 102; State v. Kennett, 114 Ind. 160, 16 N. E. Rep. 173; Crooks v. Kennett, 111 Ind. 347, 12 N. E. Rep. 715; Machine Co. v. Scovell, 111 Ind. 551, 13 N. E. Rep. 58. In Jones v. Ewing, 107 Ind. 313, 6 N. E. Rep. 819, it was held that where the appellant's husband and wife purchased a piece of town property jointly, the wife purchasing an interest equal to 7-17. and the husband the remainder, or 10-17, and by agreement the conveyance for the whole property was executed to the wife, she paying for her 7-17 in cash, and the husband and wife executing notes for the 10-17 purchased by the husband, and a mortgage on the property executed by both to secure the notes, that the wife was but the surety of her husband, and that the mortgage was void as to the 7-17

Appeal from circuit court, Greene county; JOHN T. BEASLEY, Special Judge.

Moffett & Davis, S. W. Axtell, and Cavins & Cavins, for appellant. L. T. Michener, Atty. Gen., for the State.

note, the court erred in its rulings complained | construed in its broad sense, but an indictment, in of, and a new trial should be granted. But addition to the words of the statute, must allege there is another rule which is equally well that the act charged was done feloniously. settled, that parol evidence will not be received of a previous or contemporaneous verbal understanding between the parties to vary the terms and conditions of a written contract or obligation. Stewart v. Babbs, ante, 770, (present term,) and authorities cited. But we need not cite authorities in support of this well established rule. If, therefore the offered evidence did not go to the consideration, and its only tendency would have been to prove the existence of a contemporaneous and every other officer receiving money in verbal agreement inconsistent with the terms and conditions of the note, then the rulings of the court were right, and the judgment should be affirmed.

COFFEY, J An act approved March 5, 1883, (Elliott's Supp. § 340,) provides that it shall be the duty of each clerk, sheriff, and treasurer of the several counties in this state,

his official capacity, at the expiration of his term of office, to pay over to his successor in office all moneys of every description, to whomsoever due, remaining in his hands at the expiration of such term, taking the receipt of such successor therefor; and any clerk, sheriff, or treasurer so failing to pay over such moneys, or any successor or clerk, sheriff, or treasurer who shall fail to pay over any moneys to the parties entitled to received the same, when called on so to do, shall be deemed guilty of embezzlement, and on conviction thereof shall be fined in any sum not exceeding $1,000, and be imprisoned at hard labor in the state-prison not less than one nor more than five years. Under the provisions of this statute, at the February term, 1889, of the Greene county circuit court, the grand jury of said county returned the following indictment against appellant, viz.: "The grand jury of the county of Greene, in the state of Indiana, being duly

It is evident that the conveyance was the consideration for the note. It is conceded by the offer that the note was executed to secure to the appellee the amount that was to be paid to her for the land. It is not claimed that the amount which the note represents is not the price that was agreed on for the land, nor that it was not worth the amount which the note calls for. The note and conveyance constituted but one contract, and the contract which the parties finally made, and the same is not impeached by either fraud or mistake. Suppose this suit had not been commenced, but the appellee had been willing to take $40 per year, as the appellant proposed to pay her, and suppose both are permitted to live for 20 years or more from the date at which the note was executed, at the end of 10 years the appel-impaneled, sworn, and charged, upon their lant would pay $400, the amount of the note. Could the appellee compel the appellant to continue to pay her the $40 per annum? This will hardly be claimed. But if she could, upon what contract would her right rest? Not upon the written contract which the parties entered into, for there are no such conditions contained in it. The action would have to be maintained either upon the verbal agreement, independent of the written contract, or upon the latter, varied and controlled by the verbal agreement; and this would be in violation of the well-established rule to which we have referred, and the existence of which the appellant concedes in his brief. If the appellee cannot take advantage of the contemporaneous verbal agreement, neither can the appellant.

The ruling of the court is so clearly right that we feel that we must affirm the judgment, with damages. Judgment affirmed, with 5 per cent. damages, and costs.

(120 Ind. 562)

STROPES v. STATE. (Supreme Court of Indiana. Nov. 2, 1889.) EMBEZZLEMENT BY PUBLIC OFFICER-INDICTMENT.

Act Ind. March 5, 1883, makes it the duty of a county officer to pay over to his successor all moneys remaining in his hands as such officer, and

for failure so to do he is declared to be guilty of embezzlement. Held, that the statute is not to be

oaths present, that at said county of Greene, on the 4th day of November, 1884, one Edwin R. Stropes was then and there duly elected to the office of treasurer of Greene county, in the state of Indiana, for the term of two years, ending on the 7th day of September, 1887; that the said Edwin R. Stropes was thereupon duly commissioned, and afterwards, on the 7th day of September, 1885, gave bond, and on the 8th day of September, 1885, duly qualified and entered upon the duties of said office, and served as such treasurer until the 8th day of September, 1887; that on the 2d day of November, 1886, one James E. Bull was duly elected to the office of treasurer of said Greene county, in the state of Indiana, for the term and period of two years from said 7th day of September, 1887, and was afterwards duly commissioned and gave bond, and on the 8th day of September, 1887, duly qualified, and then and there entered upon the discharge of the duties of his said office, as the successor of said Edwin R. Stropes, the then incumbent; that at the time of the surrender of said office to the said James E. Bull, to-wit, on the 8th day of September, 1887, the said Edwin R. Stropes had in his hands, as such treasurer of Greene county, in the state of Indiana, the sum of fourteen thousand four hundred and fifty-nine dollars and forty-three cents, ($14,459.43,) which moneys had come into his