67 Ind. App. 677 | Ind. Ct. App. | 1916
This is the second appeal in this case. Krieg v. Palmer Nat. Bank, 51 Ind. App. 34, 95 N. E. 613. The statement of the case in the former opinion is relied on as far as applicable to avoid repetition. Following the reversal of the judgment on the former appeal, the case was remanded to the lower court, where rulings were entered in conformity to the mandate of tiffs court. An amended reply in three paragraphs by the Palmer National Bank was filed to the second, third, and fourth paragraphs of appellant Krieg’s answer to the complaint. Appellee also filed an amended answer in three paragraphs to the cross-complaint of appellant Krieg, of which the third was a general denial. Appellant Krieg filed a reply in four paragraphs to the first paragraph of appellee’s amended answer to the cross-complaint, and also filed a reply in four paragraphs addressed to the second paragraph of appellee’s amended answer to the cross-complaint. The complaint and answers thereto and the cross-complaint are the same as on
Separate errors are assigned by each of the appellants. Appellant Krieg assigns: (1) The overruling of his motion for new trial; (2) the overruling of his motion for judgment on the answers to the interrogatories; (3) overruling his demurrer separately and severally to the first and second paragraphs of appellee’s amended reply to the second, third, and fourth paragraphs of his answer; (4) overruling his demurrer separately and severally to the first and second paragraphs of appellee’s amended answer to his cross-complaint; (5) the sustaining of appellee’s demurrer to the second, third, and fourth paragraphs of reply to the amended answer to the first and second paragraphs of the cross-complaint; (6) the sustaining of the demurrer of appellee to the second, third, and fourth paragraphs of reply to the second paragraph of the amended answer to the first and second paragraphs of the cross-complaint; (7) the overruling of his demurrer to the first paragraph of
The answer of appellee to the cross-complaint was in three paragraphs, of which the third was a general denial, and the first and second special answers. To each of the paragraphs of special answers there was filed a reply in four paragraphs, the first of which is a general denial.
The decision on the former appeal is the law of the case as to all questions presented and decided, and
Furthermore, as above indicated, the question is not presented by the assignment of errors, for the reasons already stated in regard to the fifth and sixth specifications of alleged error.
The assignments of error question the correctness of the trial court’s action in overruling the separate demurrers to the first and second paragraphs of appellee’s amended reply to the second, third, and fourth paragraph's of Krieg’s answer to the complaint,. and in overruling the separate demurrers to the first and second paragraphs of appellee’s amended answer to the cross-complaint of appellant Krieg.
Appellee’s amended first paragraph of reply to
The second paragraph of amended reply to the second, third, and fourth paragraphs of answer of appellant Krieg, in substance, alleges that appellee purchased said certificate of deposit at its usual place of business at Danville, State of Illinois, in good faith in the usual course of business, without notice or knowledge of any defects therein, or of any fraud or illegality in the procurement thereof, before the certificate was due, and paid therefor to said Price, the holder thereof, the sum of $4,250 in currency. The averments of the first paragraph of appellee’s answer to the amended cross-complaint are in substance the same as the averments of the amended first paragraph of reply above set out. The averments of the second paragraph of amended answer to the first and second paragraphs of the cross-complaint are in substance the same as those of the second paragraph of amended reply above set out.
The vital and controlling question in the controversy between appellee and appellant Krieg depends upon the sufficiency of the plea of estoppel presented by the amended first paragraph of reply to the second, third, and fourth paragraphs of Krieg’s answer to the'complaint and the first paragraph of appellee’s answer to Krieg’s amended cross-complaint. Appellant contends that the reply aforesaid is insufficient as a plea of estoppel, because it shows that Price indorsed the certificate to appellee in Illinois, and
In Moore v. Moore, supra, it is said: “The more modern rule upon the subject under consideration seems to be, that where the owner of things in action, although not technically negotiable, has clothed another, to whom they are delivered in the method common to all mercantile communities, with the .usual apparent indicia of title, he will be estopped from setting up against a second assignee, to whom the securities have been transferred for value and without notice, that the title of the first assignee was not perfect and absolute.”
In Shirk v. North, supra, 214, it is said: “The answer raises the question of the effect of the assignment of said notes, and the subsequent purchase of them by appellant, who maintains that he acquired a good title to these notes for the following reasons: The appellee assigned said notes to A. S. Yoder by the written indorsement of her name on the back thereof in blank, and without any restrictive written conditions on the notes. She also delivered the possession of them to Yoder, and thus, by her own acts,
“It is a familiar rule of law that where one of two equally innocent parties must suffer, the one who has put it within the power of another to impose on an innocent person must be the one to bear the loss. * * *
“In this case the appellee, by her indorsement of the notes in blank, without any restrictive conditions written thereon, and the delivery thereof to Yoder, placed it in his power to impose on the appellant. The appellee could have protected herself by making a restrictive written indorsement on the notes, stating that they had been assigned as collateral security for the debt of her husband. This would have precluded the person in whose favor it was made from making such a transfer as would create a right of action against either the party making the indorsement or any of the antecedent parties. 1 Wait’s Actions and Def. 597.
“By so doing, she would have put every person to whom Yoder attempted to sell the notes, on his guard,
“Appellee avers in her complaint, that she assigned the notes in suit as collateral security for the debt of her husband, but she indorsed them in blank and delivered them to him. She concealed the facts by her indorsement in blank without restrictive conditions that she had transferred them to him as collateral security for the husband’s debt. By her unlimited indorsement of these notes, and their delivery to Yoder, she misrepresented the facts, and put it in the power of Yoder to dispose of them to an innocent person. She clothed Yoder with the highest indicia of ownership of personal property, and sent forth no words of warning by which innocent and unsuspect- • ing persons could be put on their guard. The appellant, in his answer, says he expressly relied upon appellee’s indorsement and the possession of the notes by Yoder. It is clear that the appellee has, by her own conduct, brought herself within the rule declared in Cupp v. Campbell, supra, and she is now estopped,
In Wolf v. American Trust, etc., Bank, supra, the United States Circuit Court of Appeals considered a case involving a pledge of stock certificates, and in an opinion by Baker, C. J., said: “Many of the cases that deny relief to a defrauded owner of commercial paper under circumstances like the present, ground the decision either on equitable estoppel or on the principle that where one of two must suffer the creator of the situation shall b¿ar the burden. * * * But we believe that the true ground is this: An indorsement of a negotiable instrument to a named indorsee has two aspects. In one, it is a contingent contract of debt as complete and definite as if the terms thereof were written out in full above the indorser’s signature; and in the other, it is a conveyance to the indorsee of the legal title to the instrument considered as a species of property — as perfect a conveyance as in the ordinary bill of sale of the ordinary chattel. Concerning- the indorser’s liability on his contingent contract of debt, the maturity of the instrument may or may not be important. As to the validity of the indorser’s conveyance of the legal title, the maturity of the instrument is inconsequential. And so in this case, inasmuch as appellee is not counting on appellant’s contingent contract of debt but is only asking him to respect his conveyance of the legal title, the principle applies, which is common to the law of all kinds of property, that the innocent purchaser of the legal title is protected against secret equities respecting the title.”
In Baker v. Wood, supra, the Supreme Court of the United States, by Fuller, C. J., said: “But in
In Gardner v. Beacon Trust Co., supra, the Supreme Court of Massachusetts, after speaking of the general rule applicable to past due commercial paper, said: “But the case is very different where the owner of an overdue note transfers it under circumstances which enable his transferee to deal with it though obtained by fraud as if he were the true owner, and when an innocent purchaser for value takes it from such transferee before the transfer has been avoided. In such a case no equity attaches to the note in favor of the true owner as against the innocent purchaser for value, since it was by his own act that the perpetrator of the fraud was enabled to commit it. The true owner of an overdue note may deal with it as with any other property, and the mere fact that the note is overdue does not in such case, in the absence of anything in the transaction to suggest suspicion, put a purchaser upon inquiry any more than a purchaser is bound in any other case to inquire into the title of his vendor. See White v. Dodge, 187 Mass. 449. The possibility that the title may have been obtained by fraud exists in all cases. But that is not enough to put .a purchaser upon inquiry. Any
The assignments of error also present the sufficiency of the second paragraph of appellee’s amended reply to the second, third and fourth paragraphs of appellant’s answer to the complaint.
Likewise, under the issues of this case and the law as herein declared, the questions suggested as to the admissibility of evidence show no ruling in favor bf appellee adverse to any substantial right of the appellants.
It is also urged that the amount of the verdict is
As already indicated, this suit was originally to recover on the certificate, and Krieg, the payee and indorser of the certificate, asked and was granted the privilege of being made a defendant to the suit, and as such, at all stages of the proceedings, has resisted appellee’s claim to the money paid into court, and denied his right to a recovery of any amount whatever on the certificate, either from himself as indorser or from the Huntington County Bank as maker of the instrument. We therefore conclude that the judgment for the face value of the certificate, and six per cent, interest from the time payment was demanded by appellee, is not excessive as to either of the appellants.
The case seems to have been fairly tried on the merits, and no intervening error has been pointed out which affects the substantial rights of either of the appellants. Friebe v. Elder (1913), 181 Ind. 597, 609, 105 N. E. 151.
Judgment affirmed.
Note. — Reported in 111 N. E. 81.