72 Ind. App. 256 | Ind. Ct. App. | 1919
—Tbis is an action by appellee, Second National Bank of New Albany, against appellant on a draft for $741.25 drawn by appellant against Leon Brothers of Buffalo, New York, and payable to appellee. Tbe complaint, wbicb is in tbe usual form of an action on a bill of exchange, is in one' paragraph, and avers that tbe draft was not accepted or paid, but was protested at an expense of $1.80; that appellant bad on deposit with appellee tbe sum of $288.07, wbicb sum appellee applied on tbe amount advanced by it on the draft, and judgment for tbe balance of tbe draft
The material averments of appellant’s amended fourth paragraph of answer are in substance that on January 2, 1916, appellant was the owner of a carload of strawberries in the city of New7 Albany, Indiana, of the value of $741.25, which the firm of Leon Brothers of Buffalo, New York, desired to purchase on condition that the berries should be shipped to Buffalo, to their account on commission, which appellant refused to do; that thereupon appellee bank proposed to pay the amount of the purchase price of the berries to appellant for and on behalf of Leon Brothers, if appellant would ship the berries at once; that appellant accepted this proposition, and shipped the berries to Leon Brothers. The purchase price was then paid by appellee bank by giving appellant credit therefor on his bank passbook, and it was then agreed that, in order that the bank could be reimbursed for the amount paid “on behalf of Leon Brothers, and for no other purpose,” appellant should draw a draft against Leon Brothers for the sum of $741.25 in favor of appellee bank, and it was specially agreed that appellant should not be liable on the draft as the drawer thereof, but was to draw this draft for the accommodation of appellee; that
Appellee’s demurrer to this answer was sustained by the trial court upon the theory that it seeks to avoid the draft sued on by alleging a contemporaneous parol agreement.
Appellee takes the position that the fourth paragraph of answer shows that appellee bank was a-holder for value, and that, under the above statutory provision, appellant would be liable even though he is an accommodation party. Unfortunately for appellee, even if its construction of the statute is correct, which we do not decide, the facts averred in the answer do not show appellee to be a holder for value. It is nowhere averred in the answer that the bank at any time gav.e value for the draft. On the contrary, it is specially alleged that the money was not advanced, on the draft, but at the request of Leon Brothers, and as their agent, to pay appellant for the berries; and it is further averred that the draft was drawn without consideration, and for the accommodation of appellee bank in order that the bank could reimburse itself for the money paid out for Leon Brothers. It is also averred that prior to the time the draft was drawn the bank had procured a -written agreement from Leon Brothers that they would pay the amount of the draft upon presentation. The trial court erred in sustaining the demurrer to appellant’s amended fourth paragraph of answer.
The judgment is reversed, with instructions to overrule the demurrer to the amended fourth paragraph of answer; also, to overrule the demurrer to the amended third paragraph of answer by way of set-off.