75 Ind. 381 | Ind. | 1881
In this case the appellants, the defendants below, demurred to the appellee’s complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court, and to this ruling the appellants excepted. They declined 'to answer further, and the court rendered judgment against them for the amount found due the appellee on his alleged cause of action, and his costs of suit.
From this judgment this appeal is prosecuted, and the only error assigned here by the appellants is the overruling of their demurrer to appellee’s complaint.
In his complaint the appellee alleged, in substance, that, on the 12th day of September, 1871, one Erasmus M. Weaver promised to pay the appellants, who were partners under the firm name of J. H. & W. L. Ward, the sum of two hundred dollars, as evidenced by a certain promissory note, a copy of which was filed with said complaint; that afterward, on the 29th day of January, 1874, for value received, the appellants, as such partners, assigned said note to the defendant Reuben Taylor, in writing endorsed thereon, a copy of which endorsement, with a copy of the note, was also made a part of said complaint; that, on the 17th day of April, 1874, said Taylor, instituted a suit on said note against said Erasmus M. Weaver, at the April term, 1874, of the court below ; that, on the 12th day of October, 1874, a judgment was rendered by said court on said note, in favor of said Taylor and against said Weaver, for the sum of $244 ; that, on the 2d day of November, 1874, the said
It may be conceded, we think, that the said Eeuben Taylor, as the assignee of the note by the appellants, might have maintained an action against them upon their assignment, at least before his assignment of his judgment to the appellee, upon the ground of the insolvency of Weaver, as alleged, at and since the appellants’ assignment of the note. For, the doctrine is settled by the decisions of this court, that the' contract of an assignor of a note, negotiable under our statute, but not governed by the law merchant, is a warranty that the maker is liable on the note and able to pay it. Howell v. Wilson, 2 Blackf. 418 ; Sering v. Findlay, 7 Ind. 247 ; Black v. Duncan, 60 Ind. 522, on p. 532.
Taylor had a cause of action against the appellants, upon their assignment of the note, by reason of the insolvency of the maker of the note at and after the date of their assignment thereof. Taylor obtained a judgment against the
It has often been decided by this court, that the cause of action in suit is merged in the judgment rendered thereon Cissna v. Haines, 18 Ind. 496 ; Rawley v. Hooker, 21 Ind.
Our conclusion is, that the facts stated in the complaint
The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.