104 Ind. 521 | Ind. | 1884
This case was in this court once before, .and is reported in 72 Ind. 368. The plaintiff in the court below was then, as he is now, the appellant. There has been no change in the complaint, and from the reported case, we take the following statement of its averments:
“On July 3d, 1873, Benjamin F. Johnson, then in life, and Jesse B. Johnson made their promissory note, payable to the order of William H. Henschen, at a named bank at Indianapolis, sixty days from date, for the sum of $300. This note was endorsed by the payee, Henschen, followed by the appellant, Thomas E. Johnson, and James M. Bradshaw. When the note became due, neither the makers nor the other endorsers paid the same, or any part of it. Thereupon the plaintiff paid $100 of the principal of the note and the interest due; and for the residue thereof, and in renewal of said note to the amount of $200, said Jesse B. Johnson executed a like note for $200, which was endorsed in like manner as the first. When the note thus given in renewal became due, neither the maker nor other endorsers paying the same, the plaintiff paid $100 upon it and the interest due, and, in renewal of the residue, said Jesse B. Johnson executed another like note for the sum of $100, which was endorsed in like manner as the two others. When the last mentioned note became due, neither the maker nor other endorsers paying the same, the plaintiff paid it in full and took it up. Neither the maker nor endorsers have paid the plaintiff anything on accouiit of the notes, though the amount is due and unpaid. Copies of the notes and endorsements are set out.”
It is claimed there was error in overruling the appellant’s •demurrer to the first, second and fifth paragraphs of Jesse B. Johnson’s answer : in sustaining the demurrer to the second
The first paragraph of Jesse B. Johnson’s answer contained much matter, which was mere evidence, which tended to show that appellant’s claim had been fully paid, and which ought to have been struck out, as correct pleading requires the statement of facts, rather than the evidence which goes to establish the facts. But, as the first paragraph of answer contained the averment, “And the defendant says that said notes were, all fully paid before this suit was begun,”’ it was, we think, good as a plea of payment, and there was no error in overruling the demurrer to it.
The second paragraph of the answer alleges that all the notes mentioned in the complaint were paid by Benjamin F. Johnson’s administrator before the commencement of the action.
It is objected to this paragraph that it does not allege that the payment was made to the plaintiff. But it has been decided that in a plea of this kind it is sufficient to allege payment generally, without stating the amount paid, the date of payment, or the person to whom payment was made. Demuth v. Daggy, 26 Ind. 341; Wolcott v. Ensign, 53 Ind. 70; Cranor v. Winters, 75 Ind. 301; State, ex rel., v. Early, 81 Ind. 540; 1 Works Pr., section 595.
The fifth paragraph of answer is as follows: “And for fifth answer to the complaint this defendant says that before the commencement of this action the plaintiff’s claim had been fully paid and satisfied by moneys received by him from the assets of the estate of Benjamin F. Johnson, deceased, the principal debtor, for whom this defendant signed said notes as surety only, and by and with the knowledge of Thomas J. Breedlove, the administrator of said estate.”
The objection urged against this paragraph is that it does 'not allege that the administrator of Benjamin F. Johnson’s estate agreed that the moneys received by the plaintiff from
The first, second and fifth paragraphs of the answer were good, and the demurrer thereto was properly overruled.
As to the second paragraph of his reply, the appellant says in his brief: “ If the answer were sufficient, we should say that the reply was bad, but we regard it as a good enough reply to a bad answer.” Under this statement, as we have held the answer to be sufficient, it. is not necessary further to speak of the reply.
There was no error in overruling the motion for a venire de novo. By the answer of Jesse B. Johnson it was claimed that the plaintiff’s demand had been fully paid before the commencement of the action. The general verdict of the jury decided the issue thus made in favor of Jesse B. Johnson. When this was done there was nothing further in the case to decide. The questions of suretyship raised by the cross complaint and other pleadings were unimportant after the jury reached the conclusion that the plaintiff’s claim had been extinguished by payment.
The ruling on the motion for a venire de novo was correct without reference to the “ answer ” thereto which the court refused to strike out. It should have been struck out, as such an answer is unknown to the practice; but as neither the answer nor the court’s refusal to strike it out could possibly have resulted in any harm, it is manifest that we can not, on account of such refusal to strike out, reverse the judgment. R. S. 1881, section 658.
The grounds upon which’ appellant asked for a new trial were, that the verdict was contrary to, and not sustained by, sufficient evidence, and that the court erred in giving to the jury instructions numbered from one to twelve, both inclusive.
The evidence not being in the record, we can not say
We find no error authorizing a reversal of the judgment. AfSrmed, with costs.