74 Ind. App. 367 | Ind. Ct. App. | 1920
This is an action by appellant on a promissory note for the sum of $1,250, executed by appellees on March 22, 1913, and payable to Junkens and O’Neil on September 1, 1914, at the State Bank of Russellville, Indiana. The complaint is in the usual form for such proceeding with the following additional averments: “That before the maturity of said note the payees, Junkens & O’Neil, duly transferred said note by endorsement to the plaintiff herein for a valuable consideration; that the plaintiff herein purchased and acquired said note from the said payees in the usual course of business in good faith, and for a valuable consideration, before the maturity thereof, without notice of any defense thereto.”
The note, a copy of which was made a part of the complaint, contained, among others, the following provision :
*369 “Any person signing or writing his name hereon as surety, endorser or guarantor by so doing expressly consents that the time of payment hereof may be extended from time to time without any rights being released or waived.”
Appellees filed an answer to the complaint in five paragraphs. The first and second allege that appellant was not the real party in interest. The third and fourth are based upon an alleged breach of warranty and failure of consideration. The fifth contains, among others, the following allegations: “That the note sued upon was given in consideration of the sale by the payees to the makers thereof of a certain stallion, and that the purchase of said stallion'was induced by certain false and fraudulent representations alleged to have been made by the payees Junkens & O’Neil to the appellees as to the stallion being free from disease and being a pure bred Percheron stallion, eligible to enrollment and registration as such in the Stud Book of .the Indiana Stallion Enrollment Board at Lafayette, Indiana; that said stallion was diseased and of no value and was not a pure bred Percheron and was not eligible to enrollment or registration as such, etc.”
Appellant demurred separately to each of said paragraphs of answer, except the first, for want of sufficient facts. The court overruled said demurrer to each of said paragraphs of answer. Appellant refused to plead further, and thereupon the court rendered judgment against it as upon default, and in favor of appellees for their costs. Appellant now prosecutes this appeal on an assignment of errors, which calls into question the action of the court in overruling its demurrer to each of said paragraphs of answer.
An examination. of the record fails to disclose that any one bore the relation of guarantor to said note. It does not appear from the face of the note that either of appellees is a surety thereon. In fact, they admit by their joint answer that they executed the same as copurchasers of a certain stallion. Therefore it cannot be said that the provision in question ever became effective as far as it relates to a guarantor or a surety. It appears, however, from the allegations of the complaint, as well as the note itself, that Junkens and O’Neil, the payees thereof, became indorsers thereon, and by reason of the fact became bound by the provision under consideration. It is apparent that, if the note had remained in the hands of the original payees, the provision- in question would have had no effect whatever on the negotiability of the note, since there would have been no one to which it applied. Iowa, etc., Bank v. Wignall (1916), 53 Okla. 641, 157 Pac. 725; Smith v. Nelson Land, etc., Co. (1914), 212 Fed. 56, 128 C. C. A. 512. Can it be rightfully said that, because this provision became effective as to the original payees as subsequent indorsers, the note otherwise negotiable, thereby became nonnegotiable? If it can be so said, it must be because such provision, thus made effective, rendered the time for the payment of the note, which until that time had been certain, uncertain. We cannot agree that the in
The judgment is therefore reversed, with instructions to sustain appellant’s demurrer to said third, fourth and fifth paragraphs of answer, and for further proceedings consistent with this opinion.