123 Ind. 492 | Ind. | 1890
This was an action brought by the appellee, a corporation, against the appellant upon two blank endorsements.
The complaint is in two paragraphs, and as they are not substantially different we will give the substance of the first paragraph.
On the 7th day of February, 1885, Jennette Gearer executed three promissory notes to the appellant, and she and her husband, at the same time, executed a mortgage on certain real estate in Kosciusko county to secure the said notes,
The appellant answered in three paragraphs; the general
To the third paragraph the appellee addressed a demurrer, which was sustained by the court, and the appellant filed an amended third paragraph, which, in substance, is that at the tim,e said notes were endorsed the mortgaged property was of the value of $2,500; that said real estate was heavily timbered, which the appellee well knew; that the timber standing thereon was -worth $1,200, and that the appellee knew that if it were cut down and removed the real estate would not, at a forced sale, bring a sum sufficient to satisfy said indebtedness; that, notwithstanding, the appellee stood by and allowed the said mortgagors to remove from the said real estate timber of the value of $1,000; that the appellant had no knowledge thereof and supposed the said notes had been fully paid until the bringing of this action; that if the appellee had prevented said mortgagors from removing said timber, said real estate, at a forced sale, would have brought more than the amount of the indebtedness as evidenced by said notes, including costs; that it was distinctly understood at the time said notes were endorsed that the said endorsements were made without recourse, but that by fraud and mistake the words “ without recourse ” were not endorsed or written on said notes; that at the time said notes were endorsed the appellant had purchased a separator and engine from the appellee and-the said notes were taken in part payment therefor; that the appellee promised and agreed to collect said notes, and to make the amount due thereon (if not paid at maturity) out of the mortgaged real estate, and that the appellant was not to be liable on his said endorsements.
To the said third paragraph of answer, as amended, the appellee addressed a demurrer, which was sustained by the court, and the appellant reserved an exception.
After the demurrer had been sustained to the original third paragraph of answer, the appellee filed a reply in gen
The appellant appeals and assigns error as follows: 1. The court erred in sustaining appellee’s motion to strike out the second paragraph of answer. 2. The court erred in sustaining the demurrer to the third paragraph of answer. 3. The court erred in sustaining the demurrer to the amended third paragraph of answer.
We are not called upon to decide whether the court erred or not in striking out the second paragraph of answer, for the reason that the appellant’s counsel do not discuss the question in their brief, and hence waive its consideration.
The original third paragraph of answer having been amended after the demurrer was sustained thereto, the second assigned error presents no question for our consideration.
The only remaining alleged error is the third, which calls in question the sufficiency of the third paragraph of answer as amended.
We are of the opinion that the answer is bad, and that -the court committed no error in sustaining the demurrer thereto.
It has many times been held by this court that a pleading should rest upon some definite theory, and be good upon that theory, and if not, when its sufficiency comes to be tested by a demurrer it will be held bad.
The pleading under consideration is objectionable, on the
One theory seems to be that it was the duty of the appellee to protect the mortgaged property against waste, and that having failed so to do, and as the result the value of the property having been greatly decreased, and because thereof it failed to sell for a sum sufficient to pay the amount due the appellee, the appellant is not liable upon his endorsement. The other theory is that the agreement was that the notes should be endorsed without recourse, but by fraud and mistake the words “ without recourse ” were omitted. But in this instance the theory of the pleading is wholly immaterial, for the reason that upon no ground can it be held to be good.
The appellee was not required to hold its endorser to resort to extraordinary remedies after the notes became due. Thompson v. Campbell, 121 Ind. 398; Iles v. Watson, 76 Ind. 359; Titus v. Seward, 68 Ind. 456; Holton v. McCormick, 45 Ind. 411; Sims v. Parks, 32 Ind. 363; Hubler v. Taylor, 20 Ind. 446; Sayre v. McEwen, 41 Ind. 109; Cheek v. Morton, 2 Ind. 321; 26 Am. Law Reg. 201, and authorities cited.
And much less was the appellee required to resort to extraordinary and doubtful remedies in advance of the maturity of the notes to save the appellant harmless from his contract of endorsement.
The statute, section 5504, R. S. 1881, provides that the assignee having used due diligence, shall have his action against his immediate endorser.
What is reasonable diligence within the meaning of this statute? It must.be taken to mean the prompt employment of the means which the law affords for the enforcement and collection of debts when due and payable. In advance of the maturity of a promissory note an action is not maintainable thereon, and hence there is no want of diligence in not invoking legal process until that time arrives.
The assignee is not presumed to know and can not know in advance of the maturity of the obligation that it will not be paid when due, and may and has the right to remain inactive until it matures.
If legal proceedings in advance of the maturity of the note become necessary to protect the endorser, it is for him and not the assignee to institute such proceedings. As to what is required of the assignee see Thompson v. Campbell, supra, and authorities cited; Vance v. English, 78 Ind. 80 (26 Am. Law Reg. 141, and authorities cited).
The authorities cited by counsel fo.r appellant are not in point; as we have already seen, this is not a case where the ordinary relations of creditor and principal and surety exist. But if otherwise, there is no pretence that the appellee at any time relinquished in whole or in part the mortgage lien, or that it did any affirmative act whereby the security was impaired; all that is claimed is that the appellee remained inactive until the notes matured.
The law is well settled in this State that parol evidence of an antecedent or cotemporaneous parol agreement will not be allowed to vary or change a written agreement, and this rule has been applied to blank endorsements of promissory notes the same as other contracts. Blair v. Williams, 7 Blackf.132; Harvey v. Laflin, 2 Ind. 477; Smith v. Stevens, 3 Ind. 332; Beagles v. Sefton, 7 Ind. 496; Hiatt v. Simpson 8 Ind. 256; Vore v. Hurst, 13 Ind. 551; Sill v. Leslie, 16 Ind. 236; Snyder v. Oatman, 16 Ind. 265; McGaughey v. Elliott, 18 Ind. 121; Drake v. Markle, 21 Ind. 433; Dale v. Moffitt, 22 Ind. 113; Oiler v. Gard, 23 Ind. 212; President, etc., v. Hamilton, 34 Ind. 506; Roberts v. Mas
But we do not understand the record as presenting that question. As we have already seen, the theory of the answer seems to be that because of fraud and mistake the parties did not reduce to writing the contract which they in fact made. In this respect the pleading is ill, for the reason that it fails to allege in what the fraud consisted, and no facts are alleged tending to show that the parties were mistaken as to the contents of the contract when the same was executed.
We find no error in the record.
Judgment affirmed, with costs.