Mitchell v. American Insurance

51 Ind. 396 | Ind. | 1875

Biddle, C. J.

This was an action brought by the appellee, who was the plaintiff below, upon the following promissory note:

“$120.00. For value received in Policy No. 54,994, dated the 24th day of May, 1871, issued by the American Insurance Company, of Chicago, Illinois, I promise to pay said company the sum of thirty dollars and-cents, on the 1st day of May, 1872; and thirty dollars and-cents, on the 1st day of May, 1873; and thirty dollars and-cents, on the 1st day of May, 1874; and thirty dollars and-cents,. on the 1st day of May, 1875, without interest. If any payment shall remain unpaid thirty days after due, this whole note shall become due and payable.

“J. J. Mitoi-iell.”

The appellant demurred to the complaint, for the want of facts, which demurrer the court overruled. The appellant assigns as error the action of the court in overruling the demurrer to the complaint, for these reasons:

1. Because a copy of policy No. 54,994 was not filed with, and made an exhibit of, the complaint.

2. That the complaint was defective', for not averring a demand of payment before suit.

The policy was not a necessary exhibit to be filed with the complaint. It was not the foundation of the action. Nor was it necessary to demand payment before suit. The complaint is good.

The appellant pleaded,

1. A general denial.

2. That the note was given without consideration.

There was also a third and fourth paragraph of answer,

neither of which states a single issuable fact, properly pleaded. They were each demurred to, and the demurrers very properly sustained. Issues were formed by the general denial and on want of consideration, the cause tried by the court, and a finding had for the appellee; judgment rendered over a motion for a new trial; exceptions; appeal.

The evidence is not in the record.

The judgment is affirmed, with ten per cent, damages and costs.