31 Ind. App. 685 | Ind. Ct. App. | 1903
Appellant brought this action against appellee upon her indorsement to appellant of a promissory note in her favor not payable in bank. The complaint was in two paragraphs: The first alleged that on the 7th of July, 1900, one Eli Kinser, by his promissory note, promised to pay defendant $353.28; that before maturity the defendant, for value received, by indorsement in writing, assigned said note to plaintiff; that on the 3d day of May, 1901, plaintiff brought his suit on said note against said Kinser in the circuit court of Lawrence county, being the county wherein said maker then resided; that on tbe 24th day of September, 1901, said action was tried and determined by said court, and judgment rendered against this plaintiff for costs, and that he take nothing by said suit; that said note had been executed without any consideration, of which fact the plaintiff had no knowledge until said action was tried and determined adversely to it in said court; that defendant was a party to said action, and had due notice thereof and of the defense made in said action; that there is due and unpaid the plaintiff on said note and on said indorsement the sum of $200, etc. The second paragraph omits the allegation contained in the first “that said note was executed without any consideration, of which plaintiff had no knowledge until said action was tried and determined,” and contains the following averment not in the first paragraph: “That said note was fully paid before indorsement to this plaintiff, of which fact plaintiff had no knowledge.” Said paragraphs are in other averments identical. Appellee answered in six paragraphs, each addressed separately to each paragraph of the complaint, the
The assignment of errors challenges the action of the court in overruling appellant’s demurrer to the fourth and. fifth paragraphs of answer and sustaining the demurrer to the first paragraph of appellant’s reply.
Said first paragraph of reply is as follows: “That one Eli Kinser on the 7th day of duly, 1900, was the owner of certain real estate of the net value above encumbrances of $2,786.72; that one Elza Smith, mentioned in said para
Section 6964 Burns 1901, §5119 E. S. 1881, reads: “A married woman shall not enter into any contract of suretyship, whether as indorser, grantor, or in any other manner; and such contract, as to her, shall be void.” The statute recognizes the fact'that one may assume the relation of surety to a contract in the form of guaranty and indorsement, and in other ways. It declares the contract of suretyship of a married woman executed in any manner as invalid. An indorser of a promissory note warrants that it is a genuine and valid note, and that the maker is able to pay it. Baldwin v. Threlkeld, 8 Ind. App. 312; Clark v. Trueblood, 16 Ind. App. 98; Nichol v. Hays, 20 Ind. App. 369. By the contract of suretyship the surety engages to be answerable for the debt of another. Whether a married woman is principal or surety will be determined not from the form of the Contract, nor from the basis upon which the transaction was had, but from the inquiry, was
Tbe consideration for tbe indorsement is averred in tbe reply to be tbe discharge of a debt of ber husband, Elza Smith. Tbe consideration did not in any way move to ber or to tbe benefit of ber estate.
We find no error. Judgment affirmed.