45 Ind. App. 52 | Ind. Ct. App. | 1909
This is an action by appellee against appellant, npon a written instrument consisting of the ordinary form of a promissory note, for $100 with eight per cent interest and attorney’s fees. The complaint recites that it is agreed between the parties that the title and ownership of the mare, describing her, for which this note is given, is not to pass from the payee to the purchaser until the purchase price is fully paid; that, upon failure to pay when due, the payee or its agents may take possession of said property, sell the same, and apply the net proceeds thereof to the unpaid purchase price of said property. The deficit, if any, after such application of such proceeds, to be paid by the maker. It closes with the following stipulation:
“It is expressly agreed that any partial payment made on this note, unless and until the full sum of said note, principal and interest be paid, shall be taken and considered as rental for the property therein described.”
The complaint alleged that before maturity of said note, for a valuable consideration, the same was assigned by indorsement of the payee to appellee. Appellant answered in five paragraphs: (1) G-eneral denial; (2) payment; (3) fraud; (4) want of consideration; 15) breach of warranty. A demurrer was sustained to the third, fourth and fifth paragraphs of answer. Appellant withdrew his first and second paragraphs of answer and refused to plead further, and judgment was rendered in favor of appellee. Error is assigned upon the rulings of the court in sustaining each of said demurrers.
The only question presented is whether the paper sued on is negotiable by the law merchant, it being conceded that if the note in question is such negotiable paper, the cause should be affirmed, otherwise it should be reversed.
It is contended by appellant that the stipulations contained in the note render it indefinite and uncertain as to the amount and manner of payment. It is established that any uncertainty, as to any of the requisites heretofore given, destroys the negotiability of a note. 2 Parsons, Notes and Bills, 146, 147; 1 Daniel, Negotiable Inst. (5th ed.), §§51a, 52; Continental Nat. Bank v. McGeoch (1889), 73 Wis. 332, 41 N. W. 409; First Nat. Bank, etc., v. Alton (1891), 60 Conn. 402, 22 Atl. 1010; Chapman v. Wight (1887), 79 Me. 595, 12 Atl. 546; Wright v. Trover (1889), 73 Mich. 493, 41 N. W. 517, 3 L. R. A. 50; South Bend Iron Works v. Paddock (1887), 37 Kan. 510, 15 Pac. 574; McComas v. Haas (1886), 107 Ind. 512; Nicely v. Commercial Bank, etc., supra.
The following cases illustrate what are considered such uncertainties as rendered the instrument nonnegotiable. In Nicely v. Commercial Bank, etc., siipra, the note provided: “With exchange and costs of collection.” The court held that “with exchange” was an uncertainty as to amount. To the same effect is Nicely v. Winnebago Nat. Bank, supra. In McCornas v. Haas, supra, the court held that a note resting upon the performance of another contract, as a consideration, was uncertain as to payment. In Continental Nat. Bank v. McGeoch, supra, the note provided that the collateral might, in certain contingencies, be sold before the specified maturity of the note, in which event the whole debt should then become due, thus rendering the time of payment uncertain. In First Nat. Bank, etc., v. Alton, supra, the note provided tor the return of the property and consequent discharge of the debt, thus rendering the manner as well as the time of payment uncertain. In Chapman v. Wight,
Judgment reversed, with instructions to overrule the demurrers to the third, fourth and fifth ]Yaragraplis of answer and for further proceedings not inconsistent with this opinion.