Stonsel v. Abrams

7 Blackf. 516 | Ind. | 1845

Blackford, J.

— This was an action of assumpsit on a promissory note, payable to one M‘Mitten and by him assigned to the plaintiff. The defendant pleaded as to 100 dollars, part of the sum sued for, matters to show that there was no consideration for that part. Special demurrer to the plea, and judgment for the defendant. For the part of the demand not attempted to be answered by the plea, there was judgment for the plaintiff.

The plea states, that when the note sued on was given, the defendant owed MMitten 950 dollars; that M‘Mitten had previously agreed with the defendant to receive in payment of the debt, the notes of other persons held by the defendant for an equal amount, upon the same being assigned to him by the' defendant; that when the defendant had assigned said notes to Mitten in pursuance of said agreement, and in discharge of said indebtedness, M‘Millen falsely and fraudulently represented to the defendant, that the sum so due from the defendant to him was payable to his, M‘Milieu’s, wife, and that she would not take the notes so assigned by the defendant, unless he would give him, MlMillen, 100 dollars for her use; that that was the only consideration for said 100 dollars of said note, &c.

W. W. Wick and L. Barbour, for the plaintiff. W. Quarles and J. H. Bradley, for the defendant.

The plea was specially demurred to, and the following causes of demurrer were assigned: 1. It is not directly but only argumentatively alleged, that the plaintiff received the notes in full satisfaction of the demand; 2. It is not directly, but only argumentatively averred, that the notes were assigned by the defendant to the plaintiff. In these causes of demurrer, the word plaintiff instead of M‘Millen is used evidently by mistake.

The plea is no doubt defective in form as pointed out by the demurrer.' There are no positive allegations that the notes were assigned by the defendant to M‘Millen, and that the latter received them in satisfaction of the debt. These allegations were essential to the validity of the plea, and the plea contains them substantially but not in due form. The objection could not have been sustained on general demurrer; but the plaintiff had a right to insist, that the plea should be good not only in substance but in form. The statement in the plea, “ that when the defendant had assigned the notes in pursuance of the agreement,” &c., implies that he had assigned them,- but it is not a direct averment that the defendant had assigned the notes, &c.

Per Curiam.

— The judgment for the .defendant below is reversed with costs. Cause remanded, &c.