| Ind. | Dec 2, 1857
This was an action commenced on the 25th of January, 1856, before a justice of the peace, by Hauser, assignee, against Bozell, assignor, of a promissory note. The note bears date December 15, 1853; was executed by one Miller to Bozell, the defendant below, for the payment of 100 dollars at twelve months; and by the latter, on the 18th of February, 1854, assigned to Moses Pruit, who assigned it to Hauser, the plaintiff.
The complaint charges that the note is due and remains wholly unpaid; and that when it became due, Miller was, and still is, insolvent, so that an action against him would have been unavailing. The conclusion of the complaint is as follows: “ Wherefore the plaintiff demands judgment for 100 dollars.”
Before the justice, there was a recovery against the defendant for 22 dollars, from which the plaintiff appealed. In the Circuit Court, the defendant moved to dismiss the suit, on the ground that the sum stated in the note, with the addition of interest which had accrued at the commencement of the action, constituted an amount to which
The evidence shows that the plaintiff, before he instituted the present suit, placed the note in the hands of his agent, one Jones, for collection; and that Miller, the payor, had offered to transfer in payment thereof a promissory note for 100 dollars, then due; but Jones, being informed by Owens, the maker of that note, that it was subject to an offset of 20 dollars, declined taking it. Owens, having been produced as a witness, testified that when he told Jones of the offset, he also told him that he, Owens, was ready and willing to pay the residue of the note. It was proved that Miller’s property, including his note on Owens, did not, at any time between the date of the defendant’s assignment and the bringing of this action, exceed in value 300 dollars. And further, it was shown that the consideration received by the defendant for the assignment was 86 dollars and no more.
Had this suit been against the maker of the note, the ground assumed in support of the motion to dismiss would have been at least plausible. But here, the assignor is sued on his assignment, and though, in the absence of any proof on the subject, the amount of the note'is prima facie evidence that that was the'price paid for the assignment, still it was competent for the defendant to show, as the measure of damages, the actual value which he had received from his immediate assignee. 2 Blackf. 243" court="Ind." date_filed="1829-05-15" href="https://app.midpage.ai/document/youse-v-mcreary-7029642?utm_source=webapp" opinion_id="7029642">2 Blackf. 243. It could not, therefore, be known to the Court, until the close of the evidence, whether the plaintiff’s claim did or did not exceed a justice’s jurisdiction. The complaint, on its face, is unobjectionable; hence, the defendant’s motion was disposed of correctly.
The next question to settle is, was the alleged insolvency of the maker of the note sufficiently shown ? The statute says that the assignee of a promissory note “may, in his own name, recover against the person who made the same;” and that “any such assignee, having used due
But it is said in argument, that the plaintiff, having declined taking the promissory note on Owens, in payment of the assigned note, was not in position to sustain an action against the assignor. If, as we understand the evidence, Miller offered the note in full payment, the plaintiff was evidently not bound to accept it; because it was subject to an offset, and for that reason insufficient, in point of amount, to satisfy his demand. But suppose the note on Owens had been sufficient to cover the assigned note, still the plaintiff’s refusal would not prejudice his recourse on the assignor; because his was a demand for money, and could not, therefore, be discharged by a mere offer to pay it in property. The judgment must be affirmed.
The judgmentis affirmed, with 5 per cent, damages and costs.