| Ind. | Nov 15, 1865
The appellants, who were the defendants below, on the trial offered one of themselves as a witness, the record informs us, “ to prove the various allegations of their joint and separate answers, and disprove those of the plaintiffs’ complaint, but the court held that there was no issue raised by the pleadings upon which his testimony could bo received, and thereupon excluded him.” This ruling is questioned here.
The suit was upon two promissory notes, and an account stated. One of the notes was made by the defendants, Alonzo Starr, John Pees and Mansfield Starr, the other, by Starr, Pees Starr. Both were payable to A. Starr Co., and indorsed by the payees in blank.
There was a joint answer by the defendants in three paragraphs: 1. A general denial to the whole complaint. 2 and 3. That the notes were not owned by the plaintiffs, but by A. Starr $ Co., a firm composed of the plaintiffs and the defendant, Alonzo Starr.
Pees answered separately: 1. To the first paragraph of the complaint, that, in the note mentioned therein, he and Mansfield Starr were sureties, and Alonzo Starr was principal. 2. To the second paragraph, that at the execution of the note mentioned therein, he was not a member
Alonzo Starr answered separately. 1. That the note mentioned in the first paragraph of the complaint was the joint property of himself and the plaintiffs. 2. The same answer as to the note mentioned in the second paragraph of the complaint. The reply was a general denial.
There was a special finding for the plaintiffs for the amount of the two notes; and that, as to the one mentioned in the first paragraph of the complaint, Sees and Mansfield Starr were sureties. . The proper judgment was rendered upon the finding, over an unsuccessful motion for a new trial. The evidence is not in the record.
It is manifest that there were issues made by the pleadings upon which evidence for the defendant might have been admissible. The paragraph upon an account stated was controverted by a general denial. The suretyship of two of the defendants, pleaded as to one of the notes, was denied by the plaintiffs. But, inasmuch as these issues were found for the defendants, as to them the error, if any, was harmless, and therefore, not available here.
The second paragraph of Sees’s separate answer, though double, and altogether a pleading very unprofessionally framed, must nevertheless be deemed sufficient, as alleging the want of any consideration for the note which it mentions. The burden of that issue was upon Sees, and he had a right to maintain it by evidence. Shank v. Fleming, 9 Ind. 189" court="Ind." date_filed="1857-06-02" href="https://app.midpage.ai/document/shank-v-fleming-7033460?utm_source=webapp" opinion_id="7033460">9 Ind. 189; Messmore v. Vanpelt, 15 id. 138. The evidence ought, therefore, to have been admitted. But Sees only pleaded a want of consideration, and inasmuch as the other defendants had not, we think, any answer in under which the evidence1 was admissible, and on account of the refusal
It is argued that he should have stated more definitely the evidence proposed to be offered. Ordinarily this might be so. But why so in this case, when the court had determined that no evidence was admissible in his behalf under the issues ? To have then offered evidence, particularly stated, would have been to wrestle with the decision already made by the court, and would, as Rees had a right to assume, have but called for a repetition of the decision already made. A rule requiring such contemptuous persistence by a party, in order to get the point upon the record, would be a technical absurdity.
The judgment against Rees is reversed with costs, and as to him the cause is remanded for a new trial. As to the other appellants, the judgment is affirmed, with one per eent. damages and costs.