25 Ind. App. 341 | Ind. Ct. App. | 1900
Lead Opinion
—This suit was founded on a promissory note payable at a bank in this State, alleged to have been executed by one Neil to McLaughlin Bros., and by the latter indorsed to the appellee.
The complaint, consisting of one paragraph, was originally filed in the Putnam Circuit Court. Upon change of venue, the cause was put at issue and tried in the Clay Circuit Court. A trial by jury resulted in a verdict and judgment in favor of appellee for $1,275.83.
The first and second specifications of error question the sufficiency of the complaint. The third and fourth, the action of the court in sustaining the demurrers of appellee to the third and sixth paragraphs, respectively, of appellant’s answer. The fifth, the action of the court in sustaining the motion of appellee requesting the court to direct the jury to return a verdict in its favor and in instructing the jury to return a verdict for the'appellee against appellants for the full amount of the note in suit with interest thereon at the rate of six per centum per annum from the date of said note. This is also made a reason for a new trial. The sixth, the action of the court in overruling appellant’s motion for a new trial.
In support of the first and second specifications of error (the insufficiency of the complaint), it is urged (1) that the complaint anticipates the defenses, but does not aver
The complaint avers that “the plaintiff is now the owner and holder of said note, which note and the indorsement thereon is in the words and figures following, to wit: ‘$1,000. Greencastle, Ind., March 15, ’94. On July 1, 1897, after date for value received, we jointly and severally promise to pay McLaughlin Bros, or order $1,000 at the First Rational Bank of Greencastle, Ind., with interest at six per cent, per annum, interest payable annually.’ ” The names of appellants are set out. Indorsed “McLaughlin Bros.”
It appears that the note with the indorsement is contained in the body of the pleading. This is sufficient. Adams v. Dale, 29 Ind. 273; Jones v. Parks, 78 Ind. 537. The note thus made a part of the complaint contains the promise to pay, the date of maturity, where payable, the rate of interest and where payable. Ror can we agree with counsel in the view that the complaint anticipates the defense. It avers the execution of the note, and its purchase before maturity for a valuable consideration by appellees without notice of any defense. The averments which counsel for appellant claim are designed to supply the place of a reply, and to protect the holder against any defense which the makers might have against the payees, are the following: “Which note was afterwards for a valuable consideration indorsed by said McLaughlin Bros, and for a valuable consideration sold, delivered, and transferred, in the usual course of business, to the plaintiff before the same became
In these averments no attempt is made to set up a defense to the note. Latta v. Miller, 109 Ind. 302 is cited. We are unable to see that it sustains appellants’ claim. The complaint is upon a promissory note; it attempted to anticipate the defense, which was a written release of the maker, and then attempted to plead facts to avoid the release. In the course of the opinion the court, at p. 307, say: “It is true, no doubt, as appellant’s counsel insist, that where the complaint or paragraph thereof, after stating the plaintiff’s cause of action, sets up an anticipated defense thereto, and then attempts to avoid or defeat such defense by the statement of alleged facts in relation thereto, if the facts thus stated are not sufficient to avoid or defeat such anticipated defense, the complaint or paragraph thereof must be held bad on demurrer thereto for the want of facts. This must be so, in the nature of things, because the anticipated defense, if not avoided, constitutes a complete bar to the cause of action stated in the complaint or paragraph thereof.” The complaint before us contains no averment of any defense, nor that the makers claimed to have any defense.
The action of the trial court in sustaining appellee’s demurrers to the third and sixth paragraphs of answer are next discussed. The third paragraph avers that the note in suit was signed by appellants under an agreement with the payees that it was to be signed by certain other persons named, and that those persons failed to sign it. The sixth paragraph alleges that appellants were induced to sign the note by certain false and fraudulent representations made
In discussing the action of the court iii overruling appellant’s motion for a new trial, counsel for appellant claim that the court erred in striking out of the deposition of Eobert McLaughlin questions numbered 49, 50, 52, 54, 66, 67, 68, 69, and 70 of his cross-examination. This witness had testified in his examination in chief that as agent of his sons, McLaughlin Bros., payees of the note in suit, he assisted in negotiating the sale of the horse for which the note was given, and took the notes which appellants gave in settlement for the horse. The questions which were stricken out relate to an agreement claimed by appellants and the agent of the payees, that the notes were to be signed by some other person and were placed in the hands of such agent to be delivered to the payee upon the happening of certain conditions. In this action of the court there was no
The second reason assigned for a new trial is that the court erred in sustaining appellee’s motion to strike out of the deposition of Howard C. Park questions numbered four, five, and six and the answers thereto of his cross-examination. These questions are as follows: “How many annual instalments of interest were due on the note at the time of this transfer to the plaintiff ? A. There were two instalments. Q. 5. Did you understand at the time that the note was transferred to the bank that two annual instalments of interest were overdue and unpaid on the note? A. I must have noticed it since there was no indorsement of interest on the note. Q. 6. You bought the note then, with the understanding that two annual instalments of interest were due thereon ? A. I bought it with the knowledge that two annual instalments were due.” It appears from the examination in chief of this witness that he was cashier of the appellee; that as such cashier he purchased the note for appellee; that no other officer of the bank had anything to do with the purchase.
. In National, etc., Bank v. Kirby, 108 Mass. 497, the court said: “The fact that a promissory note, the principal of which is payable in four years with interest annually, bears no indorsement of the receipt of either of three instalments of interest which have fallen due, does not of itself render the note subject, in the hands of a third person who then took it as collateral security, to ■ equities existing between the original parties to it; but is a circumstance for the consideration of the jury, on the issue whether he took it in good faith and without notice of such defenses.” See, also, Parsons v. Jackson, 99 U. S. 434, 25 L. ed. 457; 2 Daniel’s Neg. Inst. 1506a. This was proper evidence to go to the jury^ upon the question of good faith, and the court erred in striking it out.
After all the evidence had been introduced, appellee filed its written motion requesting the court to give to the jury the following instruction: “Under the evidence introduced in this cause, the plaintiff is entitled to recover of the defendants the full amount of the note in suit with interest thereon at the rate of six per centum per annum from the date of said note and your verdict should be for the plaintiff for that amount.” The court gave the instruction to the jury, to which appellants duly excepted. The seventh, eighth, and ninth causes for a new trial present for review the action of the court in directing the verdict. It is claimed that the court erred in giving the instruction (1) because the motion did not specify the grounds upon which the instruction was asked; (2) courts have no authority to direct a verdict in favor of the party upon whom rests the burden of the issues; (3) there was a conflict in the evidence as to three different facts which were in issue. In support of the claim that the motion should have specified the grounds upon which the instruction was requested, appellants cite Lewis v. Brown, 89 Ga. 115; Demill v. Moffat, 45 Mich. 410, 8 N. W. 79; Demill v. Thompson, 45 Mich. 412, 8 N. W. 80; Bergstrom v. Staples, 82 Mich. 654, 46 N. W. 1035; Tillotson v. Webber, 96 Mich. 144, 55 N. W. 837; Mattoon v. Fremont, etc., R. Co., 6 S. D. 196, 60 N. W. 740; Tanderup v. Hansen, 8 S. D. 375, 66 N. W. 1073.
We do not consider it necessary to consider these objections in detail. It was said in. Demill v. Moffat, supra: “It must be a very clear case indeed that will justify the judge in taking the case from the jury on the evidence, and he should never do so without specifying the
Appellants insist that there was a conflict in the evidence on three material issues tendered by the answer. (1) The makers of the note signed it under an agreement with the payees that the note should be signed by certain other persons, who failed to sign-it, and the appellee had notice of that fact at the time the note was purchased. (2) The note was procured by fraud, and appellee purchased it with notice of the fraud. (3) The note in suit was never delivered; and that the jury should have been permitted to pass upon these issues. We do not deem it necessary to éonsider at length these propositions. The question of the good faith of appellee was in question. In determining' that question, it was proper to consider the fact that the cashier of appellee purchased the note with the knowledge that there were annual instalments of interest past due and unpaid. The instruction took from the jury the right to consider this circumstance. In this, the court erred.
Other questions discussed may not arise upon another trial, and they are not, therefore, considered. Judgment reversed, with instruction to sustain appellants’ motion for a new trial.
Dissenting Opinion
Dissenting Opinion.
—I can not agree with the conclusion reached by the majority of the court in this cause. The only evidence or circumstance tending to prove notice upon the part
The question in a case of this kind is not a question of negligence or diligence; it is wholly a question of honesty and good faith. The whole matter is summed up in one query, viz.: Did the purchaser have notice of the equities existing between the original parties to the contract ? The notice must be actual notice, or such a combination of circumstances as will create a distinct legal presumption that the purchaser was acting collusively and in bad faith, and that he must have known the facts without inquiring. Tescher v. Merea, 118 Ind. 586; Carroll v. Hayward, 124 Mass. 120; Kellogg v. Curtis, 69 Me. 212; Hankey v. Downey, 3 Ind. App. 325; Pape v. Hartwig, 23 Ind. App. 333; Church v. Clapp, 47 Mich. 257, 10 N. W. 362; Helmer v. Krolick, 36 Mich. 371.
If the fact that the note at the time of its purchase did not show upon its face that the past due interest had been paid can be considered as a circumstance tending to prove notice to the purchaser of equities existing between the original parties to the contract, it certainly can not be regarded as such a combination of circumstances as would amount to a distinct legal presumption that the purchaser was acting in bad faith and must have known the facts without inquiring. If its legal effect fell short of this, it amounted to nothing. It was the same as if no evidence had been introduced. The lower court did right in refusing to submit the cause to the jury rrpon such evidence. It was the duty of the court to refuse to submit the question to the jury when the legal effect of the evidence would not sustain a verdict in favor of the party producing such evidence. Williams v. Resener, ante,
It is not a question of the weight of the evidence. It fails- to meet the requirements of the rule of law. It amounts to no evidence. It is like a’ journey commenced but not finished. The judgment ought to be affirmed.