27 Ind. 285 | Ind. | 1866
This was a suit by the appellee, Dustin A. Dunham, against the defendants, Robert B. Newcome and Franklin G. Newcome, and one David 8. Burson, upon a note and the indorsement thereof. The note was executed by the defendants Burson and Robert Newcome, payable to the defendant Franklin G. Newcome, at the Muncie branch of The Bank of the State, and was indorsed in blank by the payee, not paid at maturity, and duly protested for non-payment, and the necessary notice thereof given to charge the indorser. ' It was alleged also that the plaintiff’ became the holder of the note before maturity. David 8.-Burson was defaulted. The Newcomes filed an answer in the nature of a counterclaim, alleging that the plaintiff was not the real pai’ty in interest; that the note actually belonged to one John W. Burson, and that the suit was brought in the name of Dunham to enable Burson to avoid his liability to the makers and indorsers of the note, growing out of the following facts, to-wit: that the Newcomes became liable on the note merely for the accommodation of the said John W., and delivered the same to him with the agreement that if the note was negotiated he would pay it at maturity; that they received no consideration or benefit from the note, or its
In the further discussion of this pleading, it must be considered, then, as a counterclaim. But it asserts substantially nothing against the plaintiff; nothing even of which he had notice. Its sufficient averments may all be conceded and still the plaintiff would be entitled to his judgment against the Newcomes, and would have no right to a judgment against John W. Burson. The latter might be liable over to the Newcomes, but why should the present suit be complicated, embarrassed or delayed by the trial
The judgment is affirmed, with costs.