181 N.E. 378 | Ind. Ct. App. | 1932
The appellee, Bank of Geneva, brought suit against the appellants and its co-appellees upon a written instrument, which, omitting signatures, was in words and figures as follows:
"Geneva, Ind., May 25, 1928. $5,000.00 Six months after date, we, jointly and 1,666.67 severally promise to pay to the order _________ of cashier at $3,333.33
Bank of Geneva, Geneva, Ind.,
Five Thousand and no/100 ______________ Dollars with interest at the rate of eight per cent. per annum from date and eight per cent. from maturity and attorney's fees for collection, value received, without any relief from valuation or appraisement laws. The drawers and endorsers severally waive presentment for payment, protest and notice of protest, and nonpayment of this note. Negotiable and payable at the Bank of Geneva, Geneva, Indiana. Interest payable semi-annually.
No. 26978 Due November 25, 1928 Discount ____.
Endorsements on back Balance Due on Endorsement on Principal Principal 1/9 1928 $1,666.67 $3,333.33."
Judgment was rendered against all the appellants and the co-appellees of Bank of Geneva from which this appeal is prosecuted. Appellants assign as error: (1) The overruling of their demurrer to the second paragraph of complaint of appellee; (2) the court erred in its first conclusion of law; (3) the court erred in its second conclusion of law; (4) the court erred in its third conclusion of law; (5) the court erred in its fourth conclusion of law; (6) the court erred in its sixth conclusion of law; (7) the overruling of their motion for a new trial.
In their motion for a new trial appellants assign twelve separate causes. In their brief counsel for appellants *560
discuss only three of these causes, viz.: (1) That the 1. finding of the court is not sustained by sufficient evidence; (2) that the finding of the court is contrary to law; (3) that the court erred in admitting in evidence over the objection of appellants, plaintiff's (Bank of Geneva) "Exhibit A," which was the written instrument heretofore set out; the remainder of the causes for a new trial are therefore waived.Cleveland, etc., Co. v. Ritchey (1916),
The pleadings were multitudinous and voluminous. As the record comes to this court, we do not think it necessary to set them out in detail; to do so would unduly extend this opinion. We will refer to such portions thereof as are necessary during the progress of the discussion of questions involved. At the request of the parties, the court made a special finding of facts 2. and stated its conclusions of law thereon. Appellants excepted to each conclusion of law assigning them as error, thus presenting the same question for consideration contained in the first assignment of error. It has frequently been decided by the Supreme Court that errors in overruling demurrers to pleadings, where there is a special finding of facts are not material, as a correct statement or declaration of the law upon the facts found would correct the error, if any, committed in the rulings upon the demurrers. Woodward v. Mitchell (1895),
To this complaint appellants addressed a demurrer for insufficiency of facts. In the memorandum it was alleged in substance, that the second paragraph of complaint was upon the theory that the instrument sued upon was a promissory note; that it was not a promissory note, that it was not payable to any person, firm or corporation; that it was made payable to order of "cashier," which destroyed the instrument as a promissory note; that it was not a contract between the defendants and plaintiff bank; that there was no agreement between defendants and plaintiff bank to pay anything; that there was a variance between the allegations of the paragraph of complaint, and the instrument set out, in that the complaint alleged that a promissory note was executed and delivered to the plaintiff, but that the instrument sued on was not payable to plaintiff. This demurrer was overruled. Each of the appellants *562 filed a separate answer in three paragraphs to this paragraph of complaint; they were general denial, payment, and want of consideration; a reply in general denial was filed to these affirmative paragraphs of answer.
Whether or not the instrument sued upon is a promissory note is the principal question presented in this case. We think that it contains all the elements required or necessary to make it 3. a promissory note. Acts 1861, p. 145, Burns 1926, § 11347; Acts 1913, p. 120, Burns 1926, § 11543. The fact that it was made payable "to the order of cashier at Bank of Geneva" does not in any way deprive it of any of the essentials of such a contract. In the case of The Bank of the State v. Wheeler
(1863),
In the case of Nave v. Hadley (1881),
Parol evidence is admissible to show that a note given to the cashier of a bank was intended as a promise to the corporation and such evidence has no tendency whatever to contradict 4. the terms of the contract. Baldwin v. Bank of Newbury (1863), 1 Wall. 234, 17 L.ed. 534; 1 Morse, Banks and Banking, supra.
The appellants also contend that the decision of the court is not sustained by sufficient evidence and is contrary to law; that certain findings of the court were outside the issues. A careful examination of the record does not uphold appellants' contention.
Finding no error the judgment is affirmed. *564