9 Ind. 119 | Ind. | 1857
This action was brought by the City Bank of Columbus against Tellon, as the maker of a promissory
■ The defendant answered, that the note was given for the premium upon a policy of insurance issued by said company to the defendant, upon the steamboat Bunker Hill, No. 3, for one year from the 8th day of February, 1851; that on the 21st of October, 1851, the policy was cancelled by mutual agreement between the parties, whereby, as to 120 dollars of the note the consideration had failed.
In another paragraph, the defendant pleads the said 120 dollars by way of set-off.
La another paragraph, he pleads as set-off the sum of 60 dollars accruing by the cancelling of a policy on the steamboat Empire, issued by the same company, cancelled October 20th, 1851, which would have expired December 18, 1851 — the premium for one year being 340 dollars — which latter policy was issued to Meekin and Faucett, “and whom it might concern,” and which, the defendant alleged, he held at the time of cancellation.
Reply in denial.
There was a trial by the Court, finding for the plaintiff for the whole amount of the note and interest, new trial refused, and judgment.
The record contains the evidence, from which it appears that the note was given for the consideration stated. The defendant gave in evidence the policies of insurance. On that for which the premium note was given was the following indorsement:
“ Office Columbus Insurance Company, New Albany, October 20, 1851. This policy of insurance is hereby cancel-led and declared void from date; also that there is due to the holders thereof one hundred and twenty dollars for-unexpired time thereon, from the Columbus Insurance Company.—F. Warren, agent.”
The other policy had a like indorsement, of the same date, stating the amount due upon it from the company at 60 dollars. The policies were cancelled in consequence of the company having become insolvent.
Warren, the agent, testified that after issuing the policy
A circular from the company, addressed to the agent, was given in evidence, setting forth the causes of their failure. It directed the agent to pay any losses that might have occurred at his agency, and directed the return of premiums for the unexpired term ‘of any policies issued by him — giving certificates to the holders for .such amounts as he might be unable to refund.
The defense here set up is relied on both as a set-off, and as a failure of consideration. It cannot be regarded as a failure of the original consideration of the note. The insolvency of the company did not of itself constitute such failure; (Hone v. Boyd, 1 Sandf. 481); and whatever merits there may be in the defense, viewed in either character, must depend upon the transaction of October 20, 1851, being a matter of defense arising between the original parties after the transfer of the note; and the only question is, whether Tellon had notice of the transfer when this occurred. The statute provides that whatever defense or set-off the maker may have had, before notice of the assignment, against an assignor, or against the original payee, he shall have also against the assignees. 1 R. S. p. 378, s. 3.
We are not inclined to disturb a verdict upon mere weight of evidence, where there was evidence to weigh; but having carefully considered the proof in this case, we
Whether the claim of 60 dollars was a proper set-off, we do not think it necessary to decide. The cause will be remanded for a new trial, upon which the proof touching that demand may be different, and an opinion in respect to it would be premature.
The judgment is reversed with costs. Cause remanded, &c.