48 Ind. App. 127 | Ind. Ct. App. | 1911
In tbe court below, appellee, as indorsee, brought this action against appellants to enforce payment of a promissory note for $1,200, dated at Mount Ayr, Indiana,
This cause was submitted to a jury for trial upon the complaint, alleging, among other facts, “that the plaintiff holds said note in good faith; that he obtained it before maturity, paid a valuable consideration therefor, and at the time he so paid said consideration and took said assignment he had no notice of any defense thereto on the part of the makers of said note.” There was an answer in five paragraphs: (1) A general denial; (2) material alteration of the note sued on after its execution; (3) breach of a written warranty of a certain horse for which the note- in suit was given; (4) non est factum; (5) failure of consideration. There was a reply in general denial. The jury returned a general verdict in favor of appellee, together with its answer to an interrogatory submitted by the court on its own motion. Judgment was rendered in favor of appellee on the verdict.
Appellants’ motion for a new trial was overruled, and this ruling is the only error presented for our consideration. Appellants, in support of this motion, first insist that the court erred in submitting to the jury, over their objection, the following interrogatory: “Did B. B. Miller sign his name to the note in suit on March 29, 1904, at Mount Ayr, Indiana?”
Appellants also insist that the court erred in giving to the jury certain instructions. Our attention is first called to instructions four and five, given by the court on its own motion. It is argued that instruction four is predicated on §9071 Burns 1908, §5501 R. S. 1881, which makes all written promises negotiable by indorsement, and that instruction five is based on §9076 Burns 1908, §5506 R. S. 1881, and is erroneous, for the reason that no evidence was introduced showing that the note in question was payable in a bank in this State. It is true that the note in suit, although negotiable by indorsement, would not be free from defenses in the hands of appellee under §9071, supra. The right of plaintiff to recover under instruction four was not made to depend upon the fact alone that the note was negotiable by indorsement. The jury was told that if it found from all the evidence that the plaintiff was the owner of the note described in the complaint, that he took it before maturity,
In the case of Crossan v. May, supra, at page 245, it was said: “In order to place a note upon the footing of bills of exchange, it should show on its face that it is payable at or in a hank.” (Oúr italics.) See, also, Indianapolis Piano Mfg. Co. v. Caven, supra. As to the question under consideration, this ease is distinguishable from the case of Hardy v. Brier (1883), 91 Ind. 91, where the note was made payable “at the bank at Attica, Indiana,” and the case of Butterfield v. Davenport (1882), 84 Ind. 590, where the note was dated “Concord, June the 5th, 1878,” and “payable at the Bank of Goshen,” and the ease of Rominger v. Keyes (1881), 73 Ind. 375, where the note was dated
"What we have said with reference to the objections urged against this instruction, applies with equal force to the specific defects claimed in each of the other instructions. Our investigation of the questions under consideration has
Judgment affirmed.