31 Ind. App. 379 | Ind. Ct. App. | 1903
Appellant commenced this action against appellee upon a promissory note. The note was an Illinois contract, and, as such,- governed by the laws of that State. The note was dated August 2, 1899,' signed by the Juniper Remedy Company, and was payable to the order of the Schroeter Manufacturing Company on demand. J. O. William Lonn indorsed the note before its delivery by writing his name across its back. Afterward it was assigned and indorsed by the Schroeter Manufacturing Company to appellant. Appellee’s answer was in five paragraphs. In the first paragraph of answer it is •alleged that the note was signed under á special agreement with the payee that the appellee was to be held as an indorser and not as a guarantor. The second paragraph is a verified general denial. The third paragraph alleges that appellee indorsed the note for the accommodation of the maker of the note, the payee having full knowledge of the same, and of the further fact that there was no consideration for the acceptance or indorsement of said note going to or received by appellee, and that appellant received the note long after its maturity, with full knowledge of all said facts. The fourth paragraph alleges that appellee did not execute the note sued on in the capacity of guarantor, but that he signed the same under an agreement that he should be held only as an indorser, and that
It is conceded that under the law of Illinois the liability of appellee in this case was prima facie that of a guarantor, and that he could be sued without joining any of the other parties to the instrument as defendants. The brief abstract of each paragraph of the answer shows the defenses relied upon, and the issues presented. We do not deem it important to discuss any question arising upon the pleadings. The judgment of the trial court must be reversed because of an erroneous instruction.
Under the assignment of error that the trial court erred in overruling appellant’s motion for a new trial, it is contended that the following instruction given by the court to the jury is erroneous, viz.: “The court instructs the jury, as a Matter of law, that if they find from all of the evidence that at the time the defendant J. O. William Lonn placed his name on the back of the note sued on, it was agreed that he signed it as indorser, or if it was agreed
The jury may have accepted the testimony of appellee that it was agreed at the time of the execution of the note that he was not to he held in any capacity thereon, and, under the instruction of the court, returned a verdict in his favor. The case of Shirk v. Mitchell, 137 Ind. 185, 196, is very much in point here. The Supreme Court in that case say: “It is quite apparent that the last two instructions are not applicable to any evidence which was admissible under the issues in this case. It is established by a long line of decisions that a party must recover, if at all, upon the facts stated in his pleadings. It would he dangerous practice, subversive of legal principles, to permit a party to plead that a note was executed for the purchase money of an engine, and make no complaint as to the fairness of the transaction of purchase, and then defeat the action by proof that he had been induced to enter into such contract through the fraud of the seller. As answer of fraud'is essentially and radically different from an answer of breach of warranty, and there
The jury, under the evidence introduced in support of the issue made by the complaint, the fifth paragraph of answer, and reply thereto, might have properly returned a verdict in appellee’s favor, hut we have no way of determining from the record whether or not the verdict is based upon the issue supported by the competent evidence.
Other alleged errors discussed by counsel may not appear upon another trial of this cause.
The motion for a new trial ought to be sustained. Judgment reversed, with instruction to the trial court to sustain appellant’s motion for a new trial.