55 Ind. 271 | Ind. | 1876
Action by the appellee, against the appellant, upon the acceptance by the latter of the following instrument, viz.:
“ George Marsh, Esq.; $150.
“ Please pay Daniel Low, or order, one hundred and fifty dollars. ' D. C. Bowen & Co.”
“November 15th, 1874.”
Endorsed. “Accepted by George Marsh.”
Judgment for the plaintiff.
Two errors are assigned:
1st. That the complaint does not state facts sufficient to constitute a cause of action; and,
2d. That the court erred in sustaining a demurrer to the amended answer of the appellant.
The objection to the complaint is, that it did not contain the copy of the instrument sued on; but this defect in the record has been supplied by a return to a certiorari.
The amended answer, to which a demurrer was sustained, was as follows:
“And for a further and second answer, the defendant, Marsh, says, that the sole and only consideration for the order in suit was the sale, by the plaintiff, to the drawers of the note, of a certain horse; that the defendant accepted said -order as an accommodation acceptor for said -drawers, and not otherwise: that said order was not
The appellant, Marsh, by accepting the bill,- although it was accepted by him for the accommodation of the drawers, became a principal debtor, and not a surety for the drawers. And he is bound by his acceptance, whether he had funds in his hands, of the drawers’, with which to pay the bill, or not. Lambert v. Sandford, 2 Blackf. 137; Murray v. Judah, 6 Cow. 484-492; Grant v. Ellicott, 7 Wend. 227; Farmers and Mechanics’ Bank v. Rathbone,
As Marsh, by his acceptance of the bill, became a principal debtor, and, as such, liable on his acceptance, we do not see that it would be conrpetent for him to raise any question as to the want or failure of consideration, as between the drawers and the payee. But without deciding this question, we proceed to enquire whether the answer sets up either a want or failure of consideration.
The horse, it would seem from the answer, was unconditionally sold by the payee of the bill, to the drawers, and there is no fraud averred in the sale or the warranty.
We think it established by the weight of authority, that where property has been unconditionally sold, with a warranty superadded, in the absence of fraud the pur- : chaser can not, because of a breach of the warranty, iwithout the consent of the seller, rescind the contract and recover hack the purchase-money paid, as for money paid upon a consideration which has failed, or defend against the collection of the purchase-money upon the ground of want or failure of consideration. The remedy of the purchaser in such case is an action for a breach of the warranty; and the remedy may, doubtless, he enforced in a proper case, by way of recoupment or counterclaim. See 2 Addison Cont., p. 233, par. 632; Thornton v. Wynn, 12 Wheat. 183; West v. Cutting, 19 Vt. 536; Kase v. John, 10 Watts, 107; Allen v. Anderson, 3 Humph. 581; Lightburn v. Cooper, 1 Dana, 273; Voorhees v. Earl, 2 Hill, (N. Y.) 288; Cary v. Gruman, 4 Hill, (N. Y.) 625.
The defence set up in the answer is neither a want or a failure of consideration. It shows a right to damages for a breach of the warranty of the soundness of the horse. But those damages were not due to the defendant, but to the purchasers of the horse, the drawers of the bill. Doubtless, if the drawers of the hill had been sued upon it, they might have set up the breach of the warranty, by way of counter-claim. But the defendant was not enti
Eor these reasons, we are of opinion that the court committed no error in sustaining the demurrer to the answer.
The judgment below is affirmed, with costs.