98 Ind. 245 | Ind. | 1884
The first error complained of by the appellant, the defendant below, is the overruling of its demurrer to appellee’s complaint in this cause.
In his complaint the appellee, Caldwell, alleged that, on the 15th day of October, 1882, at Evansville, Indiana, JamesDonigan and Horace Conkey, for a sufficient consideration, drew their bill of exchange or order, directed to the Louisville, New Albany and St. Louis Railway Company, under the name of St. John Boyle, its vice-president, requiring the said railway company, by its said vice-president, to pay to the appellee $1,000, at sight; that, prior to 'the drawing of such bill or order, the said last named railway company was indebted to said Donigan and Conkey, for work done and material furnished in the construction of its railway, in an amount larger than said sum of $1,000.74, and said company being so indebted promised the appellee that if he would proeure’from Donigan and Conkey an order or bill of exchange for said amount upon the vice-president of the said company, the company would pay such order or bill; that after the said order or bill of exchange was so drawn and delivered to appellee, the said Louisville, New Albany and St. Louis Railway Company, by St. John Boyle, its vice-president, accepted such order or bill by parol, and faithfully promised to pay the same; that at the time of such acceptance, the said rail
“ Evansville, October 14th, 1881. *‘Col. Si. John Boyle, Vice-President Louisville, New Albany
and St. Louis Railway Company:
“ Please pay William Caldwell one thousand and y7^ dollars, and charge same to our account.
(Signed) “ James Donigan.
“Horace Conkey.”
That after said order or bill of exchange was so accepted by said last named railway company, the said company, by virtue of the statute in such case made and provided, and of proper proceedings had thereunder, was duly consolidated with the Evansville; Rockport and Eastern Railway Company, and the appellant was the company formed by such' consolidation ; that thereupon the appellant became liable for the debts of the Louisville, New Albany and St. Louis Railway Company; and that although the last named company and the appellant had often promised to pay the said order, yet the same, with interest thereon from November 1st, 1881, remained duo and wholly unpaid. Wherefore, etc.
The first objection urged to the sufficiency of this complaint is thus stated, in argument, by the appellant’s learned ■counsel: “ The order reads, ‘ Col. St. John Boyle, Vice-President,’ etc. All other matters conceded, this was the individual acceptance of Col. Boyle, and not the acceptance of the company. In legal contemplation, the order was upon Col. St. John Boyle, the words, Vice-President, etc., annexed to his name, are merely descriptio personae; they might be rejected as surplusage, and exert no controlling effect. Jackson School Tp. v. Farlow, 75 Ind. 118, and cases there cited. Such words serve only to identify the party. They indicate the identity of Mr. Boyle to the same extent, and no greater, than the military prefix to his name.”
In Gaff v. Theis, 33 Ind. 307, the promissory note for a. ■debt of a corporation had been executed as follows: “ C. C. Kelsey, Ass’t Sec’y Aurora Brewing and Malting Company.”' The point was made there, as here, that the note was the individual note of Kelsey, and that the words annexed to his-name were merely descriptio personae. The court there said r “ Then it is argued that the note was not the note of the’ corporation, though expressly alleged (and distinctly-
In Vater v. Lewis, 36 Ind. 288 (10 Am. R, 29), the suit wasujion a promissory note made payable to the order of “ C. W-Smith, Treasurer of the I. M.B. Co.;” and it was held that the-words “ Treasurer,” etc., in the note were not merely a description of the person, but of the office he held in the corporation,, indicated by the letters “ I. M. B. Co.” The court said: “We have concluded that the contract in the. case before us was with the corporation, and not with Smith as an individual... We are quite well aware that there are authorities against the conclusion at which we have arrived, but there are authorities
We conclude, therefore, that the first objection urged by the appellant’s counsel to the sufficiency of appellee’s complaint is not well-taken, and can not be sustained.
The next objection to the complaint, insisted upon by the appellant’s counsel, is that the alleged parol acceptance of the order or bill of exchange sued upon is within the statute of frauds, and therefore is not binding either upon the acceptor •or upon the appellant as the successor of such acceptor. In ■other words it is claimed by counsel, as we understand them, that the alleged acceptance of the order or bill is merely the special promise of the,acceptor to answer for or pay the debt of the drawers, Donigan and Conkey, to the appellee, and that, as such special promise is not in writing, it is within the statute of frauds, and no action can be maintained thereon against the acceptor or the appellant, its successor by consolidation. Section 4904, R. S. 1881. In 1 Daniel on Negotiable Instruments, section 566, it is sáid: “ In those States where there is no statute prescribing what shall constitute an acceptance, the question of the validity of a verbal acceptance may become referable to the statute of frauds, which declares that •all promises to pay the debt of another shall be void unless in writing. An eminent legal writer says, on this subject, that: ‘The parol acceptance being no more than a parol promise it seems to the author that whether or not the acceptance
Recognizing, as we do, the' correctness of the law as here ■declared the question for decision in the case at bar may be thus stated: By the acceptance, as alleged, of the order or bill described in the complaint did the acceptor specially promise to answer for the debt of Donigan and Conkey to the .appellee, or did the acceptor merely promise thereby to pay its own debt to the drawers of the order or bill, at their request and with their consent, to the appellee, Caldwell, the payee named in such order or bill? If the first clause of this question must receive an affirmative answer, then it would seem to be clear that the alleged parol acceptance of the order or bill was within the statute of frauds, and of no binding force. But, under the averments of appellee’s complaint, we are of the opinion that the last clause of the question stated must be answered in the affirmative; that by the acceptance, as alleged, of the order or bill in suit, the acceptor, the railway company, at the request and-with the consent of its own creditors, the drawers of such order or bill, undertook and promised to pay its own debt to them to the appellee, Caldwell, and that such acceptance, although not in writing, is not within the statute of frauds, and the acceptor and the appellant are liable thereon. MoDill v. Gunn, 43 Ind. 315 ; Grim v. Fitch, 53 Ind. 214; Headrick v. Wisehart, 57 Ind. 129; Indiana, etc., Co. v. Porter, 75 Ind. 428.
But it is claimed that the order set out in the complaint, for the want of words of negotiability therein, is not a bill of exchange, and does not, therefore, import a consideration. TJpod this point, in 1 Daniel Neg. Iustr., section 161, it is said: “ There is no doubt that if the instrument sued on be
In Durland v. Pitcairn, 51 Iud. 426, it was held that,, in this State, a written promise to pay money, whether it be a promissory note negotiable by the law merchant, or a note payable upon condition, and, therefore, assignable only under the statute, imports a sufficient consideration, and, in a complaint thereon, a consideration need not be averred. Nichols v. Woodruff, 8 Blackf. 493; Tibbetts v. Thatcher, 14. Ind. 86. In the case last cited, the court said: “As a general rule, all negotiable paper is presumed to have been given upon a sufficient consideration ; and this rule obtains whether the paper sued on be negotiable under the law merchant, or assignable under the provisions of a statute. * * * It follows that if the contract before us was negotiable, or assignable under, a statute, the complaint is sufficient without-alleging the consideration upon which it was given.” In the case in hand, there is no room for the slightest doubt in regard to the negotiability, under the provisions of the statute, of the order or bill sued upon. Section 5501, R. S. 18&1, in force since July 5th, 1861. The order or bill imported a
In Miller v. Neihaus, 51 Ind. 401, it was held by this court that where one indebted to another verbally accepts, and promises to pay, a written order directed to him by his creditor, for the payment of a like indebtedness of his creditor to a third person, such acceptance, like the parol acceptance of .a bill of exchange, is valid. In Stockwell v. Bramble, 3 Ind. 428, which was a suit against the acceptor by parol of a bill •of exchange, the court said: “ The acceptance is no't objectionable merely because it was by parol. By the law merchant, a bill, whether foreign or inland, may be accepted by ■parol as well as by writing; Chitty on Bills, 316; and that is ■the law here.” Bird v. McElvaine, 10 Ind. 40.
Our conclusion is, that the court committed no error in •overruling the appellant’s demurrer to appellee’s complaint.
Under the alleged error of the court, in overruling appellant’s motion for a new trial, its counsel claim, in argument, that the verdict for the appellee was not sustained by sufficient evidence. There is some conflict in the evidence, it is true, but the jury manifestly believed the appellee’s witnesses, in preference to those of the appellant, and we can not say from the record that they were, or were not, justified in so doing. Ye think there is evidence in the record which fairly tends to sustain the verdict on every material point. In such a case, it is firmly settled that this court will not disturb the verdict on the evidence, It is not shown by the record that the court erred in overruling the motion for a new trial, and, therefore, we are required to say that such ruling was not erroneous.
We have found no error, in the transcript before us, which authorizes or requires the reversal of the judgment.
The judgment is affirmed, with costs.