Johnson County Sayings Bank v. Kramer

42 Ind. App. 548 | Ind. Ct. App. | 1908

Myers, J.

Appellant brought this action against appellee, alleging, in substance, that a partnership composed of Milbert P. Price and Lewis E. Lyon, doing business at Iowa City, Iowa, under the firm name of the Puritan Manufacturing Company, on April 15, 1904, at its place of business in said Iowa City, drew in due course, upon the appellee, its draft or bill of exchange, sued on in this action, as well as three other drafts or bills of exchange, each for $95, due in three, six and nine months after date, and forwarded them to the appellee for his acceptance in writing; that the appellee received said drafts or bills of exchange and accepted them by signing his name, “L. G. Kramer,” on the face of each, and delivered them at said Iowa City ■ to said Puritan Manufacturing Company, which in due course-, May 21, 1904, in good faith and for a valuable consideration to it paid by the appellant, indorsed and delivered said drafts .or bills of exchange to the appellant, “who is now and has been the owner of the draft or bill of exchange sued upon in this action ever since the time of said indorsement.” A copy of said draft or bill of exchange, with the acceptance • of the appellee written upon the face thereof and the indorsement of the Puritan Manufacturing Company to the appellant on the back thereof, was exhibited with the complaint, as follows;

“Puritan Manufacturing Company. No.........

Iowa City, Iowa, April 15, 1904. Twelve months after date pay to Puritan Manufacturing Company, or order, $95. Value received and charge to account of

Puritan Manufacturing Company.

per M.”

“To L. G. Kramer,

Michigan City, Indiana.

Customer’s Acceptance.

Accepted, L. G. Kramer.

Customer’s signature.”

“Pay Johnson County Savings Bank, Iowa City, Iowa.

Puritan Manufacturing Company.” “Pay any bank or banker or order.

Johnson County Savings Bank, Iotva City, Iowa.

William A. Fry, cashier. ’ ’

1. The complaint further showed that when -the draft or bill of exchange in question became due and payable it was presented to the appellee for payment through the First National Bank of Michigan City, Indiana, and payment was refused by the appellee. The complaint sets forth certain alleged statutes of Iowa, contains averments concerning the same, and alleges that the instrument sued upon is long past due and wholly unpaid. The appellee answered in three paragraphs — a general denial and two affirmative paragraphs. A demurrer to the second and third paragraphs of answer was overruled. This demurrer, so far as it is material, was as follows: “Now comes the plaintiff in the above-entitled cause and demurs separately and severally to the second and third paragraphs of defendant’s answer, on the following ground: That neither of said paragraphs states facts sufficient, ’ ’ etc. The order-book entry, showing the court’s action and the appellant’s exception, is as follows: “Which demurrer is by the court overruled, to which ruling of the court said plaintiff by counsel excepts.” It is assigned here that “the court erred in overruling the demurrer to the second and third paragraphs of the defendant’s answer to the amended complaint.” It is contended that no question is presented by this assignment.

The demurrer is addressed to the paragraphs, of answer separately and severally. The record shows that the court overruled the demurrer without referring to the separate paragraphs, and that the exception of the appellant to this action of the court was likewise general. The assignment of error is not addressed to the action of the court with reference to the paragraphs separately, but is addressed generally to the overruling of the demurrer. Certain eases cited by the appellee have been overruled, and it is said that such a general exception to such a general ruling upon a demurrer addressed to the paragraphs of a pleading separately is a sufficient exception as to such ruling upon each of the paragraphs separately considered. Whitesell v. Strickler (1907), 167 Ind. 602, 119 Am. St. 524; City of Decatur v. McKean (1906), 167 Ind. 249; Bessler v. Laughlin (1907), 168 Ind. 38; Bedford Quarries Co. v. Bough (1907), 168 Ind. 671, 14 L. R. A. (N. S.) 418. While the ruling upon the several paragraphs might have been assigned separately in this court, yet under the recognized practice the assignment made in this case is allowable, though it will be necessary for the upholding of that assignment to determine that both paragraphs embraced in the demurrer were insufficient. Black v. Thompson (1894), 136 Ind. 611; Moore v. Morris (1895), 142 Ind. 354; Ketcham v. Barbour (1885), 102 Ind. 576; Saunders v. Montgomery (1895), 143 Ind. 185.

2. In the second paragraph of answer it was alleged, in substance, that the draft sued on was accepted by the appellee at Michigan City, Indiana; that it was drawn for the payment of certain goods sold by the Puritan Manufacturing Company to the appellee under a written contract, exhibited with the answer;- that certain representations were made as to said goods; that appellee purchased the same relying upon such representations; that the goods wore not as represented; that if said goods had been as represented they would have been of the value of $380; that they were not worth more than $200; -that appellee had paid said manufacturing company $270 for said goods; that as soon as he learned of the inferior quality of the goods he notified said company that he would return the same to it, which return was refused and forbidden by said company; that he has at all times been ready and willing to- deliver said goods to said company, etc.; that the draft sued on by the assignee of that company was for the amount claimed to be due from appellee for said goods over and above the $270 already paid.

In substance, the third paragraph of answer showed that the draft in suit was drawn against appellee by the Puritan Manufacturing Company, accepted at Michigan City, Indiana, and assigned to the appellant; that it represented a partial payment for goods purchased by appellee from that company under the written contract exhibited; that the amount to be paid for the goods was $380, and that the company at the time of the sale of the goods represented them to be merchantable, and as an inducement to the appellee to purchase them guaranteed that, if the retail sales of said goods in the appellee’s store did not equal the purchase price of $380 by the expiration of twelve and one-half months from the date of the invoice, said company would buy back for cash at the original invoice price all of said jewelry then remaining in appellee’s hands; that said sales in twelve and one-half months did not equal $380; that appellee performed all of his part of said contract; that said company failed and refused to comply with said contract on its part, and refused to buy back the goods as it had agreed to do, whereby appellee was damaged in the sum of $350; that said goods remaining in his hands at the invoice price amounted to $353, which appellee had at all .times been willing to deliver to said company upon the payment to laim of the invoice price, etc., and demanding that his damages — $350—be set off against appellant’s claim.

3. The writing in suit is to be regarded nót as a promissory note but as a foreign bill of exchange. Appellee’s contract of acceptance of the bill was made in this State and is governed by the laws of this State. Burnheisel v. Field (1861), 17 Ind. 609; Payne v. Albany, etc., Bank (1891), 3 Ind. App. 214; Nicely v. Commercial Bank, etc. (1896), 15 Ind. App. 563, 569, 57 Am. St. 245; 1 Daniel, Negotiable Inst. (4th ed.), §§7, 27, 867.

In Spurgin v. McPheeters (1873), 42 Ind. 527, it was held that, in a suit by the payee against the acceptor of a bill of exchange, the latter could not avail himself of a want of failure of consideration as between him and the drawer (a third person) or of a set-off in favor of such defendant against such drawer.

In Hinkley v. Fourth Nat. Bank, etc. (1881), 77 Ind. 475, it was held that the element of fraud being absent, in an action by an indorsee of a bill of exchange against the acceptor, the acceptor cannot defend by merely showing that he i’eceived no consideration, but the acceptor must also show that there was no consideration between the indorsee who sues and his indorser. See, also, Harger v. Worrall (1877), 69 N. Y. 370, 25 Am. Rep. 206; Galvin v. Meridian Nat. Bank, etc. (1891), 129 Ind. 439; Heuertematte v. Morris (1885), 101 N. Y. 63, 4 N. E. 1, 54 Am. Rep. 657; Hoffman v. Bank of Milwaukee (1870), 12 Wall. 181, 20 L. Ed. 366.

In First Nat. Bank, etc., v. Ruhl (1890), 122 Ind. 279, which was an action upon commercial paper by a holder through indorsement, it was held that an answer pleading want of consideration was bad because it did not. show that' the plaintiff was not a purchaser for value and in good faith.

Whatever might be said of answers setting up the matters stated in the second and third paragraphs, if the action was one brought by the payee and drawer of the bill against the acceptor, they cannot be said to present any defense to the action against the acceptor brought by the indorsee, not in any manner connected with or affected by such matters.

Judgment reversed, with instructions to sustain appellant’s demurrer to the second and third paragraphs of answer.