Earnest v. Barrett, 6 Ind. App. 371

Earnest v. Barrett

6 Ind. App. 371 | Ind. Ct. App. | 1893

Ross, J.

This was an action brought by the appellees against the appellants upon a promissory note. The substance of the complaint being, that the defendants were indebted to the plaintiffs in the sum of twelve hundred dollars, as evidenced by their note, a copy of which was made *372a part of the complaint, dated November 22d, 1889, whereby they promised to pay the plaintiff Omer H. Barrett one year after the date thereof, the sum of one thousand dollars, with eight per cent, interest and attorney’s fees, and that the same was past due and unpaid; that the plaintiffs loaned to the defendants the sum of one thousand dollars, for which the note in suit was given; that six huudred dollars of the money was. furnished by the plaintiff Omer H. Barrett, and four hundred dollars thereof was furnished by the plaintiff Carrie A. Bureheman, hut that the note was made payable to Omer H. Barrett, and that he immediately assigned an interest in the note to the amount of four hundred dollars to his co-plaintiff, and that she is now the owner of an interest to that amount therein.

To the complaint the defendants filed their joint demurrer containing three causes as follows :

“first. That the said complaint does not state facts sufficient to constitute a cause of action against the defendants.

“ Second. That the said complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff Carxie Bureheman against the defexidants.

“ Third. That there is a defect of parties defendant in said cause in this: that O. H. Baxrrett should have beexx made a defendant to answer as the assignor of the plaintiff Cande Bureheman.”

A complaint, to withstand a demurrer for want of facts, must state a good cause of action in favor of all those who joixx as plaintiffs. Parker v. Indianapolis Nat’l Bank, 1 Ind. App. 462; Brown, Exec., v. Critchell, 110 Ind. 31; Peters v. Guthrie, 119 Ind. 44; Sedwick v. Ritter, 128 Ind. 209.

The note sued on was given by the appellants to the appellee Barrett for money loaxied, a part of which beloixged to him and a part to the appellee Bureheman. The allegations of the complaint are that although the xxote was *373made payable to the appellee Barrett, he immediately assigned to the appellee Bureheman “an interest in said note to the amount of four hundred dollars, and that she now has an undivided interest therein to the amount of four hundred dollars and eight per cent, interest per annum thereon.” A part of an interest in a contract may be assigned in equity, and such assignee, being a party in interest, can join with the other party or parties in interest in an action thereon. Groves v. Ruby, 24 Ind. 418. The complaint shows a joint interest, and states a cause of action in favor of both of the plaintiffs.

"We do not think it was necessary that the appellee Barrett should have been made a party defendant. He was a party plaintiff, and, by his own allegations in the complaint, alleged that his co-plaintiff was the owner of a certain interest in the note sued on. If this action had been brought by the appellee Bureheman alone upon the note, alleging an assignment or transfer to her by appellee Barrett, merely by delivery, he would have been a necessary party defendant to answer as to his interest. Section 276, R. S. 1881. But here he joins with the assignee, thereby admitting the interest of the assignee as alleged in the complaint. The purpose of séction 276, supra, is to protect the obligor of the contract, when suit has been brought thereon by one claiming through an assignment, from a liability to the original obligee in any action brought by him in the future. It has no application in this case, because the assignor is a party plaintiff alleging a joint ownership with the assignee, and he would be estopped to deny the allegations of his complaint. Singleton v. O'Blenis, 125 Ind. 151.

Counsel for appellants insist that the note sued on fails to show an endorsement by the appellee Barrett. The complaint does not charge an endorsement, but does charge an assignment of an undivided interest. There is a vast difference between the liability of an endorser and that of *374a mere assignor. The former warrants the liability and the ability of the payor to pay, while the latter simply warrants the genuineness of the obligation, and that it is unpaid. To endorse a note means that the endorser has written his name on the note. Williams v. Osbon, 75 Ind. 280.

Filed March 17, 1893.

A note may be transferred by an assignment in writing endorsed upon the note or simply by delivery.

When in an action brought by the assignee of a note the assignment is alleged to have been made by an endorsement thereof on the note itself, as provided by section 5501, R. S. 1881, the assignor need not be made a party defendant, but when the note sued on has not been assigned by endorsement the assignor should be made. a party defendant, as provided by section 276, supra. Keller v. Williams, 49 Ind. 504.

This Tatter section, however, does not apply when the assignor has assigned only an interest, retaining an interest, and he and the assignee join in bringing the action.

The cases cited by counsel for appellants have no application to this case, for the reason that in those cases where the assignment was not in writing the assignor neither retained an interest nor joined as a party plaintiff in the action.

The instructions given by the court were very full, and covered every supposable hypothesis of the case. Taken' and considered together, they stated the law correctly.

Instruction “C,” asked to be given by appellants, but which the court refused to give, was fully covered by instructions five and six of the instructions given by the court of its own motion.

The evidence not being in the record, all the other questions presented by the motion for a new trial in this case are not presented for consideration by this court.

Judgment affirmed.