61 Ind. App. 152 | Ind. Ct. App. | 1916
Appellee was successful in the court below in reducing to judgment against appellant a note executed by appellant and her son, Robert H. Parker, to J. Crouch and Son, and transferred by indorsement by the payee to the Merchants National Bank of Lafayette, Indiana, and by the bank to appellee. The complaint discloses that on December 29, 1908, a note calling for $650, with interest at six per cent per annum and attorney fees, was executed by appellant and her son to J. Crouch and Son, payable at the Citizens National Bank of Frankfort, Indiana, due September 1, 1911, and on November 27, 1909, by written indorsement the same was transferred and delivered to the Merchants National Bank of Lafayette, Indiana, and on November 4, 1911, sold by written indorsement to appellee. A copy of the note, together with the written indorsement thereon was made a part of the complaint. To the complaint, appellant addressed an answer in general denial and ten affirmative paragraphs of answer. A demurrer was sustained to the second, fifth, sixth, seventh, eighth, ninth and tenth paragraphs of answer, leaving the third, fourth and eleventh paragraphs of answer to each of which a reply in general denial was addressed, and a second and affirmative paragraph of reply was addressed to the third and fourth paragraphs of answer. At the close of the evidence, upon appellee’s motion, the court directed the jury trying the cause to return a verdict for appellee, and assess his damages in the sum of $1,001.50, which it did.
Issues of fact were joined as to the third, fourth, and eleventh paragraphs of answer. The' third paragraph set up suretyship as to appellant for her son, Robert H. Parker, and that without her consent, the time of payment was extended as to the note, a copy of which was made a part of the complaint; the eleventh paragraph declared that appellee was not the real party in interest; that the payee of the note never parted with the same and was at the commencement of the action the owner of the note in suit. The fourth paragraph pleads the facts, the leading allegations of which are that on December 29, 1908, appellant’s comaker of the note purchased of appellee, J. Crouch and Son, a stallion for the sum of $2,000; that the note in suit, together with another note for $650, due September 1, 1912, was executed by Robert H. Parker, as principal, and appellant as surety. That J. Crouch and Son warranted the breeding qualities of the horse, which failed. The horse was of no value for breeding pur
Many of the facts pleaded in the fifth, sixth, seventh, eighth and ninth paragraphs of answer are common to the fourth paragraph, the substance of which is the foregoing. The fifth paragraph alleges, however, that as a further inducement of J. Crouch and Son to Robert H. Parker to keep the horse and surrender the warranty, J. Crouch and Son was to go with Robert H. Parker to the Merchants National Bank when the note in suit fell due and arrange with the bank to accept the sum of $450 in full payment of the note. The sixth paragraph alleges the additional fact that J. Crouch and Son at the time of inducing Robert H. Parker to keep the horse and surrender the warranty was acting as agent of the bank, and that J. Crouch and Son agreed to get an extension of time of payment of the $450 for 90 days beyond the date when due. The seventh and eighth paragraphs of answer allege that there was a
The second paragraph of reply to the third and fourth paragraphs of answer is to the effect that J. Crouch and Son, the payee of the note in suit, for a valuable consideration transferred the same by indorsement before due, in the usual course of business and for a valuable consideration, in good faith, and that the bank had no notice of any defence to the note, and the bank while the owner thereof, transferred the note by indorsement to appellee.