33 Ind. App. 687 | Ind. Ct. App. | 1904
Suit by appellant, as assignee, on the following note: “Montmorenci, Indiana, October 14, 1890. One year after date I promise to pay to the order of Bernard & Hunter, $144- at the First National Bank, La Fayette, Indiana. Value received, interest at eight per cent, per annum after due until paid. [Signed.] John Woodfield, Chas. Woodfield. $144 due 10-14-17-91V Indorsed: “Without recourse. Bernard &‘Hunter.” It is averred that the payees, for a valuable consideration, and
It is first argued that the demurrer to the third paragraph of answer should have been sustained. Appellee’s verified third paragraph of answer “admits that he signed the note sued on, but says that thereafter, and without the knowledge or consent of the defendant, said note was materially altered, in this: that the following words appearing in said note, to wit, ‘First National Bank, LaFayette, Indiana,’ were written on the face of the said note after defendant had signed the same. Wherefore” he asks judgment for costs. All this paragraph of answer undertakes to do is to allege that the alteration was made after appellee had signed the note. This is not equivalent to an allegation that the alteration was made after the note was executed which includes both the signing and the delivery. The alteration may have been made after he signed it, without his knowledge or consent, but when the note was delivered he may have known the alteration had been made, and consented that it might stand in that form, as the signing and delivery of the note were separate and distinct acts. A similar paragraph of answer was held insufficient in Emmons v. Meeker, 55 Ind. 321. See, also, Prather v. Zulauf, 38 Ind. 155.
The error in overruling the demurrer to this paragraph of answer was not cured by any averments contained in the reply. The case is here on the pleadings. An exception was reserved to the court’s action in overruling the demurrer to this paragraph of answer. By replying appel
Judgment reversed.