Barner v. Morehead

22 Ind. 354 | Ind. | 1864

Perkins, J.

This was a suit upon two promissory notes made by Morehead, the defendant, payable to one Carter, receiver, &c., and his successors in office. Barner claims to be a successor. The complaint did not contain the appointment of Barner, as receiver, and we doubt whether it was not defective for that reason, not because the appointment was the foundation of the action, but of the power to sue. Perhaps that power, in such case, should be shown. The note was not payable to Barner, nor was it assigned to him. See Heron v. Vance, 17 Ind. 595; The Ohio, &c. Co. v. Fitch, 20 id, 498. The defendant answered in four paragraphs. To three of these paragraphs the plaintiff demurred thus:

Tipton, McDonald Boone, for the appellant. James N. Sims, for the appellee.

“ Said plaintiff comes and demurs to the first, second and third paragraphs of defendants’ answer, and each of them, for the following grounds of exception, viz: that said paragraphs of defendant’s answer do not state facts sufficient to constitute a defence.” ,

The Court overruled the demurrer; the plaintiff excepted’ generally, and then replied, generally, in denial of the three paragraphs. The cause was tried by the Court. There was final judgment for the defendant.

The demurrer to the paragraphs of the answer was treated, below, as joint to all the paragraphs, without objection by counsel; and we think that construction might be put upon it. Indeed, counsel on both sides so treat it in this Court. Ambiguity may be turned against the party employing it. This being so, if there was one good paragraph, the demurrer was rightly overruled. Talbott v. Armstrong, 14 Ind. 254. One of the paragraphs was that the notes were given without any consideration whatever. This was good. A general answer of no consideration is valid. Frybarger v. Cockefair, 17 Ind. 404; Swope v. Fair, 18 Ind. 300.

Per Curiam.

The judgment below is affirmed, with cost3.