23 Ind. 511 | Ind. | 1864
This was an action by Lindley, president of the bank of Paoli, against JEHsbee, Sabin, and Owen. The complaint contained four paragraphs. . To the first a demurrer was sustained, and no question is presented on it by the record. Issues were made on the second and fourth paragraphs, which on the trial, were found in favor of the defendants. No question is made here upon either of these paragraphs. The issues and trial on the third paragraph raise the only questions presented in this court.
The third paragraph avers that the defendants, as partners by their firm name of “F. Sabin § Co.,” on the 3d day of November, 1859, drew a bill of exchange, addressed to themselves in said firm name, in favor of said Owen, payable one hundred and seventeen days after date, for the sum of $3,614.30, which said Owen, on the same day, indorsed to the plaintiff'; that the said sum of money, except the sum of $1,293.38, remains unpaid; that the said bill, after its maturity, was delivered to the defendants, and still remains in their possession wherefore the plaintiff can not produce the same or a copy thereof.
The defendants answered in three paragraphs: 1. General denial. 2. That on the 19th of April, 1860, and after said bill of exchange became due, the said defendants sold and delivered to the said plaintiff two bills of exchange, drawn by one Wilcox on James Pierce, and accepted by him—one for the sum' of $1,126, due on the 1st day of June, 1860, which they sold to the plaintiff for the sum of $1,112.49, and the other for $1,243, payable on the 8th day of July$ 1860, and sold to the plaintff for the sum of $1,218.13; that said bills were transferred to the
To the second paragraph of the answer, the plaintiff replied: 1. That the bills drawn by Wilcox on Pierce, though presentid at maturity, were never paid, and that said Pierce and Wilcox at the maturity thereof were wholly insolvent. 2. That at the time of the delivery of said bills on Pierce and Wilcox to the plaintiff, the defendants fraudulently represented to the plaintiff, that said Pierce and Wilcox were solvent and able to pay the same, and would pay them at maturity, and that the sums of money therein named were secured by mortgage on the real and personal property of said Pierce, which would make said bills entirely secure; that, relying on said representations, the said plaintiff received said bills of exchange of said- defendants, “to be applied, when pcdcl, to the extinguishment of the balance” due on the bill sued on; that 'at the maturity of said bills, the said Pierce and Wilcox were entirely and notoriously insolvent; and that they were in no respect secured by mortgage on the property of said Pierce, and that no part thereof had been paid. 3. General denial to the whole answer.
By agreement of the parties, the issues were submitted to the court for trial without a jury. The court found separately on the several issues on said third paragraph of the complaint as follows: “ On the issue of general denial to said paragraph of the complaint, the court finds for the plaintiff; and as to the issue joined on the plaintiff’s reply, number one, to the second paragraph of the answer, the court finds for the defendants that the acceptances therein mentioned were taken as payment of the bill of exchange in the complaint mentioned; and
The court overruled a motion for a new trial made by the defendants, and rendered judgment for the plaintiff on said finding; the defendants excepted, and appeal to this court.
A bill of exceptions sets out all the evidence. There is no brief of the appellee on file. The only questions dis
The second paragraph of the answer sets up payment in full of the bill of exchange, which is the foundation of the third paragraph of the complaint, part in money, and the residue in the two bills of exchange drawn by Wilcox on Pierce, which, it is averred, were received by the plaintiff' as payment. The first paragraph of the reply tenders an immaterial issue, as it neither denies their receipt as payment, nor confesses and avoids it; it simply avers their non-payment, and the insolvency of Wilcox and Pierce at their maturity. The finding of the court for the plaintiff on that issue, and that the bills were received as a payment, was proper, as thereby the issue tendered by that paragraph of the reply did not affect the merits of the other issues. It will be observed that the third paragraph of the answer is payment in general terms. Replication in denial. It was a good answer in bar, and if true must defeat the plaintiff’s right to recover on the cause of action set forth in the paragraph of the complaint to which it was pleaded. On that issue the court found for the defendants. It is therefore insisted by the appellants that, under that finding, without regard to the issue on the second paragraph of the answer, the final judgment should have been for the defendants, and that the court erred in rendering a judgment for the plaintiff on the issue under the second paragraph of the answer. It is not claimed by the appellants that there was any proof of payment in any other mode, or by any other means, than in the manner set up in the second paragraph of the answer. The proof of payment in the manner alleged in that paragraph would be admissible under, and applicable to, the ■ third paragraph; and as the court found under the issues on the first replication to the second paragraph of the answer, and on the third paragraph of the answer, that the bill of exchange sued on had been paid, and the evidence clearly
We do not find it necessary to examine or determine what would be the effect of. a deisarture in pleadings under such circumstances, as we do not think there was a departure.
The answer sets up a payment, made in part by the delivery to the plaintiff of two bills of exchange, drawn by Wilcox on Pierce. Now, assuming that the replication, in effect, admits the receipt of the bills as a payment, but then attempts to avoid it by alleging the fraudulent representations by which the plaintiff was induced to receive them in payment, would such an avoidance constitute a departure? We think not. We do not here discuss the question whether sufficient facts are averred in the replication to vitiate the contract or avoid the payment; but
The receipt of the hills on Pierce by the plaintiff did not of itself constitute a payment on the bill sued on; but to have that effect, they must have been accepted as such payment. The replication under consideration admits the receipt of the bills, but does not admit that they were received as a payment; but, on the contrary,-avers that that they were received of the defendants to be applied, when paid, to the extinguishment of the bill sued on. If they were only received for the purpose alleged in the implication, then the subsequent averments of the fraudulent representations of the defendants would be immaterial. It contains no averment that the defendants knew the representations to be false. We think the replication only amounts to an argumentative denial of the answer, and that the departure, if any, is in the finding of the court.
We have looked over the evidence, and do not think it sufficient to justify a finding against the defendants, even under a proper issue, on the alleged ground of fraud. But, under the state of the issues in the case, we do not deem it necessary to examine that question further here. Eor the reasons given, the judgment of the Circuit Court must be reversed.
Judgment reversed, with costs, and the findings of the court below set aside; cause remanded, with leave to the plaintiff to amend the replications. The reversal is only to effect the findings and judgment on the issues on the third paragraph of the complaint.