78 Ind. 209 | Ind. | 1881
Action by the Howe Machine Company against Jasper N. Brown, Francis M. Brown and Samuel S. Brown, on two promissory notes.
Jasper N. Brown answered separately in two paragraphs, upon which issue was joined.
Francis M. Brown and Samuel S. Brown jointly answered: First. A want of consideration for the execution of the notes.
Second. Substantially as follows:
For further answer, they say that they separately, each for himself, admit the execution of the notes in suit, but that the plaintiff should not recover in this suit for the following reasons: The defendant Francis M. Brown was at one time the surety and liable upon the bond of the defendant Jasper N. Brown, and one Simon Lepinsky, as the agents of the plaintiff for the sale of sewing machines manufactured by it; that said liability began on the 6th day of April, 1875, and terminated by the dissolution of the partnership of the said Jasper N. Brown and Simon Lepinsky on the 10th day of September, 1875; that, after the said dissolution, the plaintiff, without the knowledge of the said Francis M. Brown, continued the said J as-per N. Brown as its agent, and he, subsequent to the said dissolution, became, and was a defaulter for a large sum; that the said Jasper N. Brown resided in another county, at a distance from the residence of the said Francis M. Brown; that the plaintiff, by its agents, after said defalcation, then came to the said Francis M. Brown, and falsely and fraudulently represented that the said defalcation occurred during the time said bond was in force, and grew out of the credit given and trust reposed in the said Jasper N. Brown and his said partner, and that
Francis M. Brown, also, answered separately, setting up similar representations by which he was induced to sign the notes, averring such representations to have been false.
Demurrers were overruled to the second paragraph of the joint answer of Francis M. Brown and Samuel S. Brown, and the separate answer of the said Francis.
The plaintiff has appealed, and argues that the demurrer ought to have been sustained to the second paragraph of the answer of the said Francis M. and Samuel S., Brown, set out as above.
To enable a defendant to defeat an action like this on account of fraudulent representations, it must be shown that the representations were concerning some material matter, that they were false, that they were such as he had a right to rely upon, that he did rely upon them and was deceived thereby. 6 Wait’s Actions and Defenses, 816; Frenzel v. Miller, 37 Ind. 1; Jones v. Hathaway, 77 Ind. 14; Elsass v. The Moore’s Hill, etc., Institute, 77 Ind. 72.
The facts necessary to establish fraud must be averred and proved by the party who alleges and relies upon it. Wait, supra, 820.
With these well recognized principles in view, we think it was not made sufficiently to appear by the paragraph of answer complained of, that Jasper N. Brown was not guilty of any defalcation while he was in partnership with Lepinsky, and that Francis M. Brown was not in any manner liable to the plaintiff as the surety of the said Jasper.
Nor was it sufficiently averred that the defendants Francis M. Brown and Samuel S. Brown relied upon the alleged representations, as to the liability of the said Francis as the surety of the said Jasper, in the execution of the notes.
The allegation that the notes were executed “ to avoid litigation and the shame of a criminal prosecution against their brother, and in consequence of fear of the same,” fairly implied, that inducements other than the supposed liability of the said Francis entered into the transaction.
The paragraph of answer under discussion appears to us, therefore, to have been bad upon demurrer.
The judgment, as to all the defendants below, is reversed, at the costs of the appellees, and the cause remanded for further proceedings.