People's State Bank v. Ruxer

31 Ind. App. 245 | Ind. Ct. App. | 1903

Roby, J.

Suit upon a negotiable promissory note, alleged to have been executed by the appellee and indorsed to appellant by the payee, before maturity, in the regular course of business, it paying a valuable consideration therefor and being without notice of any defenses thereto. Verdict and judgment for appellee. The court overruled appellant’s demurrer to the fourth paragraph of appellee’s answer, and such action is assigned as error.

Fraud in the procurement of the contract for or in connection with the consideration of a negotiable promissory note, in the hands of an innocent holder, will not bar his recovery. First Nat. Bank v. Lotton, 67 Ind. 256; Woollen v. Ulrich, 64 Ind. 120; Cornell v. Nebeker, 58 Ind. 425; Dutton v. Clapper, 53 Ind. 276; Hereth v. Merchants Nat. Bank, 34 Ind. 380; Thomas v. Ruddell, 66 Ind. 326; Brickley v. Edwards, 131 Ind. 3, 7; Bremmerman v. Jennings, 61 Ind. 334; Maxwell v. Morehart, 66 Ind. 301.

Where the signature to a note is secured by fraud going to the character of the paper, its maker'having no intention of signing a note, he will, in the absence of negligence in affixing his signature, or in failing to discover the fraud, be no more bound by it than he would be if the signature were a total forgery. Cline v. Guthrie, 42 Ind. 227, 13 Am. Rep. 357; Detwiler v. Bish, 44 Ind. 70; Nebeker v. Cutsinger, 48 Ind. 436; Webb v. Corbin, 78 Ind. 403, 406; Baldwin v. Fagan, 83 Ind. 447.

The fourth paragraph of answer contains áverments tending to show fraud as affecting the consideration fqr the note. It contains no direct averment that appellee did not sign the note, nor that his signature was procured by fraud, except as such conclusion may be deduced by inference from the statement that, if his signature is genuine, it was obtained by fraud, either in substituting the note for an insurance application or reading the same incorrectly or by means of a carbon transmitter. ETo diligence on appellee’s part is shown, and the only excuse attempted is that he is “not educated in the English language as it is. printed.” It is no hardship to require a direct statement of the defense relied upon. The averments in the pleading under consideration are in the alternative, are ambiguous, and therefore insufficient. Wheeler v. Thayer, 121 Ind. 64, 67; Hatfield v. Cummings, 142 Ind. 350, 353.

The facts stated do not show fraud in procuring the signature, and, adopting the theory disclosed by them, the answer is bad. Kimble v. Christie, 55 Ind. 140. If the pleading were given the construction and effect claimed for it by the appellee, it would still be insufficient for want of facts showing diligence on his part. Lindley v. Hofman, 22 Ind. App. 237.

Judgment reversed, and cause remanded, with instruction to sustain the demurrer to the fourth paragraph of answer, and for further proceedings not inconsistent herewith.