80 Ind. 324 | Ind. | 1881
— This action is upon a negotiable promissory note executed by the appellee to one A. G. Burros, and by him endorsed to the appellant.
The questions which first require consideration are those
The third paragraph of the answer alleges that the note sued on was given for an article called " Lewis’ Horse Hopples,” which the payee of the note agreed to deliver to the appellee j that the hopples were never delivered, and that the . consideration of the note has wholly failed. It is also alleged that the appellant did not become the owner of the note until after maturity, and that, when he did purchase it, he had notice of the failure of the payee to deliver the hopples for which the note was executed. This paragraph is good. It shows, not in a very perspicuous manner, it is true, that the eonsidei’ation of the note was the sale and delivery of certain property to the maker, and that the payee had wholly failed to deliver the property as promised. Where the consideration of a promissory note is the sale and delivery of property, and the payee of the note wholly fails to deliver the property as agreed, there is an entire failure of consideration.
The fifth paragraph of the answer sets forth a written contract, executed contemporaneously with the note in suit. This instrument acknowledges the receipt of one hundred dollars in payment for one hundred horse hopples, to be delivered to the appellee by the payee of the note, appoints the lattei agent
We agree with appellant’s counsel, that the general statement that “ the consideration had wholly failed” does not make the plea good. A mere general conclusion can not supply the place of traversable facts. Worley v. Moore, 77 Ind. 567. We do not attach any importance to this conclusion of the pleader. We have looked to the facts pleaded, and not to the mere general conclusions stated.
We do not regard the answer as showing, that the consideration of the note was the appointment of appellee as Burros’ agent for the sale of the patent horse hopples. The answer shows, as we read it, that the note was given for one hundred horse hopples, which the payee agreed to deliver to the appellee. But if it were conceded that the answer does show that the consideration of the note was appellee’s appointment, it would be sufficient, for it very clearly shows that the payee had no power to make the appointment, and that he did not
It is true, that the answer is lacking in certainty and precision, but these are faults which can be reached by motion, ;and not by demurrer.
The answer shows that the appellant received the note after maturity, and with full knowledge that the consideration had totally failed. The authority cited by counsel, to the effect that want of consideration can not be set up by the maker of the note to defeat the action of an endorsee, does not apply to cases where the endorsee takes the note after maturity, or where he takes i't with full knowledge of the entire failure or want of consideration.
The appellant has caused the clerk to certify to this court •a copy of the original note. The bill of exceptions was signed and filed in March, 1880; the certificate of the clerk accompanying the original note is dated May 16th, 1881. We can not treat the note as in the record. The practice here adopted is not warranted by law. Papers can not be made part of the record in any such manner.
There is evidence tending to sustain the appellee’s defence of non est factum. It is not our duty to disregard the finding of the jury and its approval by-the judge who tried the case, because the evidence, as exhibited in the bill of exceptions, appears to strongly preponderate against the appellee.
Judgment affirmed.