Alleman v. Wheeler

• Decision Date: 31 March 1885
• Docket Number: 11,010
• Citation: 101 Ind. 141
• Parties: Alleman v. Wheeler
• Court: Indiana Supreme Court

101 Ind. 141

Alleman v. Wheeler

No. 11,010

Supreme Court of Indiana

March 31, 1885

From the Marshall Circuit Court.

The judgment is affirmed, with costs.

J. D McLaren and H. Corbin, for appellant.

A. C Capron and M. A. O. Packard, for appellee.

OPINION

Niblack J.

Action by Amzi L. Wheeler against Philip S. Alleman upon the latter's endorsement of a promissory note, as follows:

"$ 1,000. Plymouth, Indiana, January 23d, 1879.

"One day after date, for value received, we, or either of us, promise to pay P. S. Alleman, or order, one thousand dollars, at his office in Plymouth, Ind., with interest at the rate of ten per cent. after maturity, and with ten per cent. attorney's fees, without any relief from valuation and appraisement laws.

W. W. Duff.

"Reuben Kaley."

Endorsed: "P. S. Alleman."

The complaint averred that when the note became due the plaintiff brought suit upon it in the Marshall Circuit Court against Duff and Kaley, as the alleged makers thereof, who joined issue in said cause by a plea of "non est factum," and that upon the final trial, at the March term, 1882, of said court, Duff and Kaley recovered judgment against the plaintiff upon such plea and for costs of suit, taxed at $ 50.

The complaint further averred that at the time Alleman endorsed the note to the plaintiff, he had knowledge of the fact that Duff and Kaley were not its makers, and were not liable to pay the same; also, that the note remained wholly unpaid.

Alleman, the defendant, first moved that the plaintiff should be required to make the allegations of his complaint more specific, but his motion was overruled. He then demurred to the complaint, and his demurrer was overruled. He thereupon answered in two paragraphs: First. Denying the execution of the note by Duff and Kaley and of the endorsement sued on. Second. A general denial.

The circuit court trying the cause made a general finding for the plaintiff, assessing his damages at the amount due upon the note, and, denying a new trial, rendered judgment upon the finding.

It is claimed that the circuit court erred: First. In denying the motion to require the complaint to be made more specific. Second. In overruling the demurrer to the complaint. Third. In refusing to grant a new trial upon the ground that the finding was not sustained by sufficient evidence, and was, in fact, contrary to law.

It is enacted by section 376 of the code of 1881, that "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties; but when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment."

It is quite evident that the facts relied on for a recovery in this action were not as directly and certainly charged as the rules of good pleading required, and that the complaint might, with great propriety, have been ordered to be made more definite and certain; but we think the fair inference, from the facts as charged, was, that although Duff and Kaley purported to be the makers of the note, made a part of the complaint, they were not in fact such makers, and that by reason thereof payment could not be enforced against them; also, that at the time Alleman, the appellant, endorsed the note he had knowledge that Duff and Kaley were not its makers, and were not liable to pay it.

As thus construed, the facts contained in the complaint constituted a substantially good cause of action against the appellant. No injustice was, therefore, done him by denying his motion to have that pleading made more definite and certain. For the same reason there was no error in overruling the demurrer to the complaint.

Wait on Actions and Defences, vol. 1, p. 599, says: "An indorser impliedly warrants that the instrument is not forged, and he is liable on this warranty in case the instrument proves to be a forgery. Herrick v. Whitney, 15 Johns. 240; Shaver v. Ehle, 16 Johns. 201; Morrison v. Currie, 4 Duer 79. The indorsement of a promissory note imports a guaranty by the indorser, that the makers are competent to contract in the character in which, by the terms of the paper, they purport to contract; and, therefore, where a note was void because it was made by married women, the endorser of the note was held liable. Erwin v. Downs, 15 N. Y. (1 Smith) 575. Knowledge by the plaintiff, at the time he received the note, that the makers were married women does not affect his right to recover. See Remsen v. Graves, 41 N. Y. (2 Hand) 471; Putnam v. Schuyler, 4 Hun 166; 6 S. C. (T. & C.) 485; Dalrymple v. Hillenbrand, 2 Hun 488; 5 S. C. (T. & C.) 57; 62 N. Y. (17 Sick.) 5; McLaughlin v. McGovern, 34 Barb. 208."

Edwards on Bills and Notes, at section 274, states the rule to be that "One who transfers a negotiable instrument by indorsement warrants the title and genuineness of the paper he transfers, and when prosecuted upon his contract of indorsement he is estopped from denying the existence legality or validity of the contract which he transfers for the purpose of defeating his own liability thereon. He warrants that the instrument is not forged, and is liable upon that warranty if any of the names prior to his own be not...