4 Ind. App. 573 | Ind. Ct. App. | 1892
Angaletos sued the bank upon two drafts drawn by the latter in favor of Anast B. Poulon,
An answer was filed consisting of seven paragraphs, to which a demurrer was filed in the form following: “ The plaintiff demurs separately to the second, third, fourth, fifth, sixth and seventh paragraphs of the defendant’s answer herein, and shows : First. That neither of said paragraphs of answer states facts sufficient to bar the plaintiff’s action.” The demurrer was overruled and the cause was put at issue and tried by the court, and resulted in a finding and judgment for the defendant.
The first question raised by the appeal relates to the ruling upon the démurrer to the answer. Counsel for appellee makes the point that the demurrer is insufficient, to raise any question, and in this view we are compelled to concur. The code provides but one cause of demurrer to an answer, viz: that it does not state facts “ sufficient to constitute a cause of defence.” Section 346, R. S. 1881; Harrison School Tp. v. McGregor, 96 Ind. 185.
It has been repeatedly held that a demurrer must substantially fulfill the statutory requirements or it will not be error to overrule it. Lane v. State, 7 Ind. 426; Gordon v. Swift, 39 Ind. 212; Thomas v. Goodwine, 88 Ind. 458; State, ex rel., v. Younts, 89 Ind. 313; Hildebrand v. McCrum, 101 Ind. 61.
In the case last cited a demurrer alleging that the answer did “ not state facts sufficient to constitute a bar to the plaintiff’s complaint,” was adjudged insufficient. Under these authorities the demurrer in question must be disregarded.
“ Exchange for £51. Indianapolis, Dee. 7th, 1887.
“ On demand of this original draft (duplicate unpaid), please pay to the order of Anast B. Poulon the sum of fifty-one pounds sterling.
“ To American Exchange in London, Ltd., .
449 Strand, London, Eng. A. P. Kopp, Cashier.”
Accompanying the draft was the following memorandum:
“ Give to the purchase of draft memorandum of issue of demand draft No. 050508, date Indianapolis, Dec. 1, ’87, amount £51, on A. E., in Europe, Ltd., at London, payable to Anast B. Poulon. Purchaser George Angaletos received for above draft $248.37 (420 B).
“A. P. Kopp, Cashier.
“ If the draft, of which this is a memorandum, be lost or otherwise destroyed and not presented for payment within six months from date of issue, and if satisfactory evidence be given of same, a duplicate draft may he issued in lieu thereof.”
On the 16th day of March, 1888, the other draft sued upon was issued by appellee to the same party, upon the same terms as the one set out, for the sum of £60, and was accompanied by a memorandum the same as that above given. These drafts were presented for payment on the 12th day of May, 1888, and payment was refused on account of the drawee having suspended, and they were duly protested. The drafts, memoranda and certificates of protest were introduced in evidence, but the only evidence of notice to appellee of the dishonor or protest of the instruments was what might be inferred from the following letter by the cashier to appellant:
*577 “Indianapolis, July 7th, 1888.
•“ George Angaletos, Alleghany, Pa.:
“ Dear Sir — Your favor of the 3d inst. received and noted. If due diligence had been used in the matter, your drafts would have been paid — if the checks had been presented in a reasonable time. If the bank in London ever pays anything you may probably get something. Respectfully yours,
“A. F. Kopp, Cashier.”
There was also evidence showing that it required about ten days in the usual course for an item of mail to go from Indianapolis to London. There was no evidence that the drafts had been in circulation, and their presentment delayed on that account, except there appear two •endorsements upon the back of each in a foreign tongue, of which the record contains no translation.
Demand bills-of the character of those in question are much in the nature of bank checks, and are intended to be paid without any delay, having in view the reasonable convenience of the holders. Bull v. Bank of Hasson, 123 U. S. 105; Dumont v. Pope, 7 Blackf. 367; Phoenix Ins. Co. v. Gray, 13 Mich. 191; Walsh v. Dart, 23 Wis. 334; Parker v. Reddick, 65 Miss. 242; Daniel Neg. Inst., sections 605 and 1587; Byles Bills, p. 215.
Such drafts are negotiable, and though not intended for general circulation, they may be put into the arteries of trade and supply commerce with aliment in the journey to their destination. It was said by the court in Parker v. Reddick, supra : “ Paper payable on demand, while not commonly intended for that purpose, may be put into circulation, but its ultimate presentment for payment can not be delayed beyond a reasonable time by transfer or successive transfers any more than it can by being locked up or held an unreasonable timé by the first or any subsequent holder.” Ordinary bills of exchange, issued upon
In the case before us there was no evidence that the paper was in circulation, and the burden being with appellant to show diligence, the finding of the trial court that the holder was guilty of laches in presenting it for payment must be upheld unless there is something in the memoranda, as claimed by counsel for appellant, to take the paper out of the ordinary rule. The argument is that the memorandum issued with each draft should be construed as part of it, and the provision for the issuance of a duplicate after six months, if the original were lost or destroyed without presentation for payment, is substantive and gives the holder unqualifiedly six months in which to present the paper. Ordinarily, foreign bills are issued in sets of three, called first, second and third of exchange, in order to guard against accidental delays in the mails and to insure safe transmission. The whole set constitutes one bill, and the discharge of any one discharges all. In this case but one was issued, designated the “original.” The only effect of the memoranda was to provide for issuing duplicates under certain contingencies, and they contained data for that purpose. They do riot assume to change or qualify the argreement imported into the contract by legal implication, that the holder should present the paper for payment within a reasona
Notwithstanding the drawer may have been discharged by the laches of the holder, the latter would still have his right against the drawee, and upon the happening of the contingencies named in the memoranda would be entitled to the duplicates to enable him to assert that right. Our conclusion is that the memoranda contain nothing to relieve appellant from the result of the delay in presenting the paper. This conclusion renders it unnecessary to discuss the question of notice.
The judgment is affirmed.