On appeal from the Supreme Court.
For the appellant, Henry M. Hartmann.
For the respondent, Harvey T. Satterthwaite.
The opinion of the court was delivered by
HETFIELD, J. This is an appeal from a judgment of the Supreme Court in favor of the defendant entered on the verdict of a jury after a trial held at the Mercer Circuit. It appears that the parties involved are brothers, who prior to the spring of 1933, had conducted a dairy business in Princeton under the name of Rockwood Dairy, Incorporated. The present suit was instituted to recover on a promissory note made by the defendant to the plaintiff dated November 1st, 1928, for $2,000.
The defense offered was that when the note was given, the plaintiff had entered into a contract to purchase certain real estate, and as he did not desire, for business reasons, to take title in his own name, had the contract assigned to the defendant. Sometime after this transaction took place, the plaintiff requested the defendant to execute the note in question so that the plaintiff would be protected in the event that for any reason the property, or his interest therein, was not reconveyed when requested. The property was transferred back to the plaintiff in January, 1932, but he failed to return
the note, stating it had been lost, and in its place and stead, gave the defendant a receipt which reads:
This will certify that a certain note of $2,000/xx has this day been canceled the object to this kind of a receipt is due to the fact that this note cannot be found & if found is void.
The defendant also submitted proof to show that he had disposed of his interest in the Rockwood Dairy, Incorporated, in the early spring of 1933, for which he was paid the sum of $8,000, and at the time, a document entitled "Memorandum of Final Adjustment" was executed by both brothers and the corporation, which reads, in part, as follows:
"It is further provided between all the parties hereto that there are no other charges or credits between the parties hereto except as set forth therein or in ...