16 Ind. 37 | Ind. | 1861
John P. Teeple sued David Pose upon a promissory note for the payment of $1,100. The note bears date June 29, 1854, was payable to Norman Lewis & Go., at twelve months, and by them indorsed to one Abijah Wallace, who indorsed it to the plaintiff. Defendant answered by five paragraphs. As the third and the reply thereto, sufficiently raise the only point made in the case, the other paragraphs will not be further noticed. The third paragraph alleges that the note was given to Norman Lexois (& Go., the payees, for sheep sold by them to the defendant; that they represented to him that they brought the sheep from Vermont, and that they were sound and free from disease; when, in truth, they were not sound, but were infected with a disease called “ foot-rot,” by which they became wholly valueless. That
Plaintiff replied : 1. By a general denial. 2. That shortly after the making of the note, and before it became due, Lewis c& Go., the payees, proposed to sell the note to Abijah Wallace, for $954 in cash: that Wallace was willing to purchase it at that price, provided the defendant had no defense to it, and, thereupon, with a view to purchase said note, he, Wallace, called on the defendant, informed him of the pending negotiation, and thát he would purchase the note if it was all right, and would be paid without objection when due, and inquired of him whether there would be any defense made to the note. To which inquiry the defendant, then, answered and informed Wallace that said note was all right— would be paid when due, and that he might safely purchase it. And, thereupon, Wallace, relying on said representations, bought the note of the payees, and in good faith paid them $954 for the same, took an assignment of the note, and afterward sold and assigned it to the plaintiff.
Defendant demurred to this paragraph of the reply; but • the demurrer was overruled, and he excepted. The issues were then submitted to a jury, who found for the plaintiff, and the Court, having refused a new trial, rendered judgment on the verdict.
It is conceded that the facts stated in the reply would be, in a suit upon the note by Wallace against the maker, sufficient to estop the maker from setting up the matter alleged in the third defense, but contended “that such estoppel is available only in favor of him to whom the admissions constituting the estoppel were made; because he has acted upon it, and placed himself in a position which he otherwise would not have assumed.” This exposition seems to be incorrect. The note while in the hands of Wallace was still assignable.
The judgment is affirmed, with 3 per cent, damages and costs.