68 Ind. App. 406 | Ind. Ct. App. | 1918
This action was instituted by appellant to recover on a certain promissory note alleged to have been executed by appellees to the order of Whitford Brothers, and thereafter assigned and transferred to appellant by a proper indorsement in writing. Appellees’ answer, in four paragraphs, includes : (1) A general denial; (2) a plea of payment; (3) a defense that appellant is not, and never was, the bona fide owner of the note in question, and that; subsequently to its maturity, appellees paid and settled the note with one of the Whitford brothers, its real owners; and (4) a plea of estoppel based on certain statements alleged to have been made by one of appellant’s representatives, which will later appear from our discussion of the evidence. A trial by jury resulted in a verdict for appellees, and, from the judgment thereon, this appeal is prosecuted. The sole error assigned challenges the action of the circuit court in overruling appellant’s motion for a new trial, but most of the specifications contained in that motion are so presented as not to require extended treatment.
One of the Whitford brothers testified that, after the note became due, and was unpaid, he exercised the option given in the sale contract to retake and sell the live stock for which the instrument was given, and then entered a credit on the note at the bank. This witness expressly testified that he “took up the cattle as consideration or pay for the note.” There is also evidence to the effect that one of the agents of the bank, either the cashier or the assistant cashier, told appellees’ attorney, in response to an inquiry concerning the note, that he must see Mr. Whitford, as they (the bank) had nothing to do with the instrument. The latter statement is made the basis of appellees’ fourth paragraph of answer, and appellant contends that this proof is insufficient to establish the defense of estoppel, since it does not appear that appellees in any way acted on said statement to their loss. Conceding this contention, the evidence still has a bearing on the issue of ownership, and may have been so considered by the jury. It also appears that Whitford Brothers, although residents' of the county in which appellant bank is situated, were not made defendants to the. action as indorsers on the note. These circumstances are open to different inter
Judgment affirmed.
Note. — Reported in 120 N. E. 605.