61 Ind. 425 | Ind. | 1878
This was a suit by the appellees, as plaintiffs, against the appellants, Robert Browning and George W. Barker and one Jacob II. Colelazer, as defendants, on a promissory note.
In the appellees’ complaint, it was alleged, in substance, that, on March 7th, 1876, the defendant Colelazer, being indebted to Courvoisier, Wilcox & Co., executed to them his note for three thousand five hundred dollars, due four months after date, at the German-American National Bank, of New York; that the appellants Browning and Barker then and there endorsed said note, intending to become jointly liable thereon with said Colelazer; that, after the execution and delivery of said note to the said payees thereof, they endorsed the same before maturity, to wit, on March 15th, 1876, for value, to the appellees,
At the October term, 1876, of the court below, at special term, the appellants Browning and Parker appeared and filed what was called their answer in this action. In this so-called answer, the appellants alleged, in substance, “ that they endorsed said note, as surety for Jacob H. Colclazer and Courvoisier, Wilcox & Co., of Yew York; that the said Jacob II. Colclazer was and is the principal in said note, and received the full benefit thereof, and that no part of the consideration was received, at any time, hy these defendants or either of them, and that they are accommodation endorsers only. Wherefore they ask an order that said judgment be made out of the property of said defendant Colclazer.”
The defendant Colclazer made default, and the cause was then submitted to the court for trial, and a finding was made for the appellees, in the sum of three thousand seven hundred and eighty-five dollars and seventy-one cents, and that the appellants Browning and Parker were sureties on said note; and judgment was rendered on said finding. Afterwrrd, at the same term of the court, the appellants moved the court in writing for a new trial of this action, which motion was overruled, and to this decision they excepted, and appealed from said j udgment to the court below, in general term. In this latter court, the appellees “ having offered to remit one hundred and eighty-four dollars and forty-one cents of the judgment, and having agreed that it should be so modified as to draw six per cent, interest, the judgment of special term
The cause was remanded to the special term, with instructions to allow the appellees to enter a remittitur for one hundred and eighty-four dollars and forty-one ceuts, and to so modify the judgment as that the rate of interest should be six per centum.
To this judgment of affirmance, the appellants excepted, and appealed therefrom to this court.
The appellants have assigned as errors the judgment and orders of the court below in general term. In this latter court, the only error properly assigned by the appellants was the decision of the court in special term, in overruling their motion for a new trial. The causes for such now trial assigned by the appellants were as follows:
“ First. The judgment of the court is not sustained by the evidence;
“ Second. The judgment of the court against them is contrary to law;
“ Third. The excessive damages;
“ Fourth. Error in the assessment of the amount of recovery, being too large; and,
“ Fifth. Error in the judgment, in this: the judgment draws seven per cent, by its terms, when six per cent, is the legal rate.”
It will be seen, from the record of this cause, that the appellants Browning and Parker did not controvert nor call in question any of the averments of the appellees’ complaint, in their so-called answer thereto. In truth, it is a misnomer to call the pleading filed by the appellants in this action an answer. It was the “written complaint” of the appellants, against their co-defendant, Jacob H. Colclazer, under the provisions of section 674 of the practice act. 2 R. S. 1876, p. 277. The relief asked for by the appellants, in their said complaint, was the relief provided in such a case in section 675 of the
In the ease at bar, the allegation in the appellees’ complaint, that the appellants “ Parker and Browning then aud there endorsed said note, intending to become jointly liable thereon with said Colelazer,” the maker of said note, was a material allegation; aud, not having been “specifically controverted” by the appellants, this allegation must “ be taken as true.” It follows therefore, that, under the pleadings in this action, the appellees were clearly entitled to a finding and judgment against the appellants for the amount due upon the note in suit, which was, under the evidence in the record, the principal of said note and interest thereon, from and after its date, at the rate of six per centum per annum, as no rate was specified in said note, less a credit of thirty-six dollars
The note was payable in New York, where the rate of legal interest on such a contract, as is generally known, is seven per centum per annum. The statute of New York, prescribing the rate of interest on such a note, was not set up by the appellees in their complaint, nor did they prove the law of New York, on the trial of this cause. It is claimed in argument by the appellants, that their contract was made in and governed'by the law of this State. This would be so, perhaps, if their contract was merely that of endorsers. Hunt v. Standart, 15 Ind. 33, and Rose v. The Park Bank, 20 Ind. 94. But if, as the record shows, the contract of the appellants was that of joint makers of the note in suit, then they were liable according to the law of New York, where their note was payable. Hunt v. Standart, supra. It seems, that, in the assessment of the amount due on the note sued on, interest was computed at the rate of seven per centum per annum, without either an averment or evidence that such rate was the legal rate in New York; and the court ordered that its judgment should bear interest at the same rate, from the date of the rendition thereof.
In their motion for a new trial, the appellants assigned these errors of the court, in relation to the interest on the note, as causes for such new trial; but the motion was overruled by the court, in special term. "When the cause was before the court below, in general term, as we have seen, the appellees having offered to remit one hundred and eighty-four dollars and forty-one cents of the judgment, and having agreed that it should be so modified as to draw six per cent, interest, the judgment of the special term was affirmed, except as to said sum of one hundred and eighty-four dollars and forty-one cents, and as to the rate of interest.
The judgment of the court, in general term, is affirmed, at the appellants’ costs.