79 Ind. 80 | Ind. | 1881
— The appellants, as assignees, brought this suit against the appellee, on the following note:
“June 26, 1878.
“ Three months after date, I promise to pay to the order of George Stoll, one hundred and ninety-two dollars, at the First National Bank, Lawrenceburgh, Indiana, value received, with interest at ten per cent, per annum, without any relief from valuation or appraisement laws. And I promise to pay all attorney’s fees and cost and charges for the collection of this note. The drawers and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note. The makers and endorsers of this note further ■expressly agree that the payee or his assigns may extend the time of payment thereof, from time to time, indefinitely, as he or they may see fit, and receive interest in advance or otherwise, from either the makers or endorsers, for any extension so made. George Stoll.”
The note was alleged to have been endorsed by George Stoll to W. P. McCay, and by him endorsed before due, and for a valuable consideration, to the appellants, who aver that they are innocent holders of the note.
The appellee answered the complaint by a general denial, and he also answered it by a special paragraph, in which he alleged that he was a German by birth, who came to this coun
Upon these facts the appellee demands judgment. Both paragraphs of the answer were verified.
The same facts stated in the special paragraph of the answer were set up by way of counter-claim, except that, in the counter-claim, the sons of the appellee are not stated to have been present at the time of the transaction. The counter-claim is-verified.
The appellants demurred to the special paragraph of the-answer and to the counter-claim. The court overruled the-demurrers and the appellants excepted. The cause was tried by a jury; verdict and judgment for the appellee.
The rulings of the court upon the demurrers are assigned as errors.
The note sued on is commercial paper, and is governed by the law merchant. The appellants are alleged in the complaint to be innocent holders, for value. The note was, in
It is not alleged in the special paragraph of the answer, that the sons of the appellee could not read and write the English language. The fair inference from the facts stated is, that Martin could do so. The appellee refused to accept the agency himself,mainly upon the ground that he could not read and write. He directed Martin to accept it, agreeing to sign the necessary papers, for the reason, we infer, that he could both read, and write. It is stated, apparently by way of excuse, that one of the strangers had, under pretence of watering the horses, induced Martin to go with him to the barn, and that he was not, for this reason, actually present when the papers were executed. But, if at the barn, he was not so far away that'he could not have been called. The men with whom the appellee was transacting the business were entire strangers to him;;* he knew nothing of them. He knew that he could not read. Common prudence would have suggested to the appellee, under the circumstances, the propriety of calling in his son and having him read the papers presented to him for execution. But this he did not do. Without asking the stranger even to' read them, he blindly relied upon his statement p.s to their contents and meaning, and, as is not unfrequently the case, was deceived and imposed upon. He, and not-the innocent holder of the note, must bear the consequence of his misplaced confidence. Maxwell v. Morehart, 66 Ind. 301; Indiana National Bank v. Weckerly, 67 Ind. 345.
We think the court below erred in overruling the demur
Pee Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the costs of the appellee.