23 Ind. App. 210 | Ind. Ct. App. | 1899
Appellee brought this action against appellant upon a promissory note alleged to have been executed by appellant to the order of Edwin A. Jones, who indorsed it in writing to Catherine Jones, who in turn indorsed it, before maturity, in writing to appellee. The note was for $236.68, with interest and attorney’s fees. Appellant answered by ■non est factum.
No question is made upon the complaint or answer. The cause was tried by jury and a verdict returned for appellee in the sum of $263.40. With the general verdict answers to interrogatories were returned. The error assigned upon this appeal is the action of the court in overruling appellant’s motion for a new trial.
It appears from the record that appellant and one Edwin
The motion for a new trial contains ten reasons. Under the first and second, appellant complains of the verdict of the jury and the finding on the eighth interrogatory submitted to them. As our view of the law requires the reversal of the judgment, and as the questions presented by these reasons for a new trial may not arise upon a second trial, we do not pass upon them.
The refusal of the court to submit to the jury the sixth interrogatory asked by appellant is the third reason stated in the motion for a new trial. This interrogatory is in the following language: “It is true, is it not, that- after said Edwin A. Jones had thus filled up said blank he, as agent of his wife, took said note to Coldwater, Michigan, and sold it to the plaintiff, and that at the time the plaintiff so purchased said note it clearly appeared that the words “Eitst National” with which said blank was filled were in a handwriting different from that of the remainder of said notes?” This . interrogatory called for several facts. It has been held by the Supreme Court that each interrogatory must present a single material fact involved in the issue. Town of Albion v. Hetrick, 90 Ind. 545, 548, 46 Am. Rep. 230; Rosser v. Barnes, 16 Ind. 502. Interrogatory number seven asked by appellant, and refused, is subject to the same objection.
In Palmer v. Poor, 121 Ind., at page 137, the court in commenting upon Marshall v. Drescher, 68 Ind. 359, said: “The circumstances were such as to create the implication that the holder of the note had authority to fill the blank left in the instrument, and it was upon this ground that the note there under consideration was held valid. The case of McCoy v. Lockwood, 71 Ind. 319, asserts the doctrine that a material alteration will avoid a note even in the hands of a bona fide indorsee, refers to the cases of Holland v. Hatch, 11 Ind. 497, Schnewind v. Hacket, 54 Ind. 248, and Collier v. Waugh, 64 Ind. 456, with approval, and denies that a note in the hands of a Iona fide holder is enforceable where it was altered by writing in it a place of payment.”
The third instruction given at the request of appellee and excepted to is made the seventh reason for a new trial. It is as follows: “The court further instructs you that notwithstanding the fact that the defendant and. Edwin A. Jones, the payee of the note, agreed that said note should not be payable at any bank, yet if the defendant signed the note, leaving the space in front of the word 'Bank’ vacant, and
The law as announced by the Supreme Court and this Court in this State, with reference to the purchase of negotiable paper before maturity, is that if there is anything about the paper itself, or the circumstances attending its presentation for discount, calculated to excite suspicion in the mind of a reasonably cautious person, it is the duty of
The fifth instruction requested by appellee, and excepted to, informed the jury that “if one of two innocént people must suffer, the one must lose who put it in the power of another to fill up the blank and sell it to innocent purchasers.” As an abstract proposition, this instruction correctly states .the law. Appellant should have asked for further instruction upon the subject of negligence of the parties if he desired it.
The third instruction given by the court of its own motion was excepted to. It is as follows: “If you' find the note sued upon in. this case was drawn up with the words fin a Bank at Elkhart, Ind.,’ leaving a blank space before the word ‘Bank’ in said note, then the payee of the note would have had the legal right to add the words ‘First Rational’ before the word ‘Bank’, and if that is all he did, your verdict will be for the plaintiff. This he could do without committing forgery, with or without the consent of the maker.” The payee had no right to fill up a blank in violation of an agreement between the parties, which materially alters the note, with notice of such agreement.
Another reason for a new trial discussed by appellant is the action of the court in permitting the witness O. T. G-illet, cashier of appellee, after he had testified that he had bought the note in suit for $200, to answer the following question: “State whether or not you bought it in good faith.?” To which question the witness answered, “We did.” The question of good faith was one to he decided by the jury upon
The position of counsel for appellee upon the questions presented upon the instructions is that if A give to B a perfect negotiable note, B would have no right to interline or fill in other material inconsistent with the character of the paper for the purpose of making it a negotiable note governed by the law merchant; but if A executes to B a note not perfect, and not complete upon its face, with proper blanks to be filled, B may fill those blanks not inconsistent with the character of the paper. Tha_t in the case at bar, an imperfect negotiable note was executed “payable at-Bank, Elkhart, Indiana,” and that the payee.'was thereby authorized to fill in the name of any bank in the town named, for the purpose of making the note a complete negotiable note governed by the law merchant, for the reason that the name of the bank filled in is not inconsistent with the character of the paper. With the rule for which appellee’s counsel contend, we find no fault. Its reason is thus stated in §181, Randolph on Commercial Paper (ed. 1886.) “The leaving of blanks in a contract and the delivery of the instrument with such blanks create an agency in the receiver and his assigns to fill the blanks in the way agreed upon or contemplated by the maker. * * * The authority to fill a blank in such case is derived wholly, as will be seen, from the implied agency created by the maker’s act in putting the paper into circulation.” This right is given by an implied authority; but authority can not be implied to do that which it is agreed shall not be done. The law will not make a contract contrary to the express agreement of parties. Counsel for appellee contend that blanks may be filled with matter germane thereto in violation of an existing agreement to the contrary, and that the note will be valid in the hands
The judgment is reversed, with instruction to the trial eourt to sustain appellant’s motion for a new trial.