29 Ind. App. 81 | Ind. Ct. App. | 1902
The appellee, Ellen Sheridan, sued upon a promissory note for $2,537.86 given her by the appellant, James A. Pritchett, while unmarried, and to foreclose a mortgage on land executed by him to her at the same time to secure the payment of the note. He having thereafter married, his wife was made a defendant, and with him she appeals. There was an answer in denial, with other paragraphs of answer, in which it was pleaded, in various forms, as a defense, and also as a partial defense, that the note and mortgage, as to $1,000 of the amount thereof, were given in consideration only of money won from the appellant James A. Pritchett on the result of a wager. The
The evidence showed, without conflict, that the appellant James A. Pritchett had executed his note, gwerned by the law merchant, for $1,000, to one Edwin D. Ward, which he transferred and indorsed, for a valuable consideration before its maturity, to John Sheridan, son of the appellee. This note, the appellants alleged in certain paragraphs of their answer, was given to Ward for money won by him of the appellant James on the result of a wager. The only evidence that this was the consideration of the note was furnished by the testimony of the appellant James alone, who testified that it was given in payment of lost wagers on the game of “craps” playecL by him with Ward. The evidence, uncontradicted, showed that John Sheridan gave in exchange to Ward for this note, a saloon, a note of a third person, and a note of John Sheridan, the transaction being closed and the Ward note being received by John Sheridan about seven o’clock in the evening. There was evidence that the next morning, about eight or nine o’clock, the maker of the note was met by John Sheridan, who said to the former, “Is this note all right ?” To this Pritchett answered, “Yes, that’s all right.” Sheridan said, “It’s your note, is it ?’* Pritchett answered, “Yes.” Sheridan said, “You signed it, did you ?” Pritchett answered, “Yes.” Sheridan said, “It’s all right, is it?” Pritchett answered, “Yes, it’s all right.” John Sheridan, pursuing the conversation, referred to the fact that the note was not nearly due, and told Pritchett he would like to have some security. Pritchett proposed to procure a loan from the appellee, and, as a result of the conversation, the two men went to the appellee. Pritchett was already indebted to the appellee rvpon a note and mortgage for $5,000, on which the interest was in arrears, and she had been seeking in vain to collect the interest from him. When he and John
The parties, in effecting the arrangement agreed upon,^ visited tire office of an attorney, who testified on the trial that Pritchett, in the presence of the appellee and John Sheridan, said he was going to borrow money from the appellee, and produced a memorandum, and said, amongst other things, that he owed John Sheridan $1,000, and that there was a little interest on that, — a few dollars. The appellee fully performed all the obligations thus devolved upon her. She paid off in money, and settled with her own note, the debts of Pritchett to the bank, and he received at the time the evidences of his indebtedness to the bank. He also received the $1,000 note from John Sheridan, who delivered it to the attorney, who passed it over to Pritchett; it never having been in the possession of the appellee. And
Counsel for the appellants in argument insist that the note and mortgage in suit were, in legal effect, as to $1,000 of the principal debt represented thereby, but the renewal of the note for that sum given in satisfaction of a lost wager, and that to such amount the consideration was illegal. We do not find it necessary to decide the question thus pressed by the appellants. If the fact pleaded in answer, that the Ward note was given for money won by Ward in playing a game of craps, would constitute a defense, either complete or partial, the burden of establishing such fact was on the appellants. Whatever might be the proper effect of the testimony of the appellant James to that effect, if believed, it was wholly uncorroborated; and, as it appears in the record before us it bears some discrediting indications, which, with others not apparent here, the trial court may have taken into consideration in connection with the other evidence. It is to be observed that the maker of the Ward note directly and distinctly admitted to John Sheridan that the note was signed by appellant James, and that it was all right. He also expressly and directly admitted to the attorney, in the presence of John Sheridan and his mother, the appellee, that he owed John Sheridan $1,000, represented by this note. He also admitted the validity of the note, in part by his silent acquiescence with what was said in his presence by John Sheridan to the appellee, when it was his duty to speak, and to contradict, if what John said to the appellee was not correct, and also, at the same time, by asking of her a loan of money with which to pay it off, and by obtaining her promise to pay John Sheridan, for which lie-gave her the note and mortgage in suit. Such admissions constituted
Judgment affirmed, with five per cent, damages.
