Baldwin v. Threlkeld
| Decision Date | 26 September 1893 |
| Docket Number | 830 |
| Citation | 34 N.E. 851,8 Ind.App. 312 |
| Parties | BALDWIN v. THRELKELD |
| Court | Indiana Appellate Court |
G. W Paul and M. W. Bruner, for appellant.
P. S Kennedy and H. H. Ristine, for appellee.
The appellee sued the appellant in the court below, the complaint being in two paragraphs. There was no demurrer filed to either paragraph of the complaint, but there is an assignment of error that the first paragraph fails to state facts sufficient to constitute a cause of action.
The substance of the averments of this paragraph is, that on the 8th day of October, 1888, the appellant sold and assigned to the appellee, by separate instrument, a certain promissory note, dated November 8, 1887, and purporting to be signed by John L. Bryan and William Bryan, payable to the order of the appellant, for the sum of $ 582.05, and due one day after date; that the consideration paid for said note and the assignment thereof was a stallion of the value of $ 700; that copies of the written assignment and the note are filed with this paragraph of complaint; that the promissory note so sold and assigned to the appellee was a forgery, and was not executed by said William Bryan; that, by reason of such forgery, the said note is absolutely worthless, and that appellee has been damaged in the sum of $ 800, for which he demands judgment.
The appellant's counsel have not pointed out any objection to this complaint, which would render it bad on assignment of error, and we have discovered none. Its theory is that the appellee has been damaged by reason of the sale to him of the forged and worthless note.
Counsel argue that there is a wide difference between an assignment and an indorsement of a note, and we fully agree with them in their position. But there is no need for drawing any such distinction here, for the reason that this is not an action against an indorser, and is not claimed to be such. Some question is also attempted to be made as to the correct measure of damages in such a suit, but no such question is involved in the objection to the complaint. The appellee, by this paragraph, shows himself entitled to recover some damages. He would be entitled, on the facts averred, to recover the amount he paid for the note. Whether the amount he should recover would be the actual value of the horse or the price agreed upon, without regard to the value, is not raised by this pleading.
The second paragraph of the complaint was in the nature of an action on an account for the value of a horse sold and delivered by appellee to appellant, for the price of $ 650, of which sum $ 50 had been paid by the appellant. To this paragraph an answer was filed in two paragraphs, viz:
1. The general denial.
2. Payment for the horse before the action was commenced.
The appellee filed a general denial in reply to the second paragraph of answer, and the cause was submitted to the court for trial.
At the request of the parties, the court made a special finding of facts and legal conclusions.
The second specification of error is that the court erred in its conclusions of law from the facts found. It is insisted, in the first place, that the special finding contains only items of evidence and not ultimate facts. The special finding is, in substance, that on the 8th day of October, 1888, the appellant commenced an action in the Chancery Court of Kenton county, Kentucky, against John L. Bryan and William Bryan, upon a promissory note of the tenor set out in the finding; that afterwards, on the same day, appellee sold to appellant a saddle horse, of the value of $ 500, and received from appellant his note for $ 50, which was afterwards paid, and a certain written assignment of the note sued on in the Kentucky court and the proceeds thereof. The assignment is also set out in the finding. It is further found that this note was executed by John L. Bryan, but that William Bryan did not sign it; that John L. Bryan signed William's name to the note without legal authority to do so, and without the knowledge or consent of said William; that at the time said suit was commenced in the Kenton Chancery Court of Kentucky, said John L. Bryan was wholly insolvent, and was a nonresident of the State of Kentucky; that William Bryan was then solvent; that in said suit the said William Bryan filed a separate answer of non est factum, duly verified; that upon the filing of such answer, John L. Bryan dismissed said action; that the note so sued upon was given in renewal of another note before executed by John L. and William Bryan to the appellant for a valuable consideration, the said John L. signing the name of said William Bryan to said original note, with full authority to do so from said William; that no part of said assigned note has been paid; that, at the time appellee accepted said assignment, he knew that said John L. Bryan was insolvent, and that he relied upon the genuineness of said note so assigned and upon the solvency of said William Bryan for its payment.
From these facts the court concludes:
1. That the assignment of the note in question was not a payment of any part of the value of said horse so sold by appellee to appellant.
2. That appellee is entitled to recover the unpaid balance of such value, viz., $ 450.
We think, while these findings contain some evidentiary facts, they also contain sufficient ultimate facts to warrant the conclusions drawn by the court.
It is objected that the findings fail to show that there was any delivery of the horse. It is found that the appellee sold the horse to the appellant. The execution of the $ 50 note, even without the assignment of the Bryan note, made the sale a complete and not an executory one, and the title in the horse passed to the appellant. Possibly the appellee might have had the right to have the sale annulled for the fraud of the forged note transaction, but certainly the appellant could not treat the sale as void for that reason. The sale was not void under the statute of frauds, because the $ 50 note was a part payment of the price of the horse, and entitled the appellant to possession so long as the sale was not disavowed by the appellee. The title in the horse having passed to the appellant, he could have brought replevin for him in case the appellee had refused to deliver him, and we must presume that he obtained such possession. Having thus purchased the horse, he was legally bound to pay for him. This he could not do with a forged note, and hence the finding that this note was no payment is correct. It was not essential that the finding should show a delivery.
It is further complained that the finding fails to show the ultimate fact that the horse was not paid for, the appellant insisting that there can be no recovery without the finding of such fact. If it be conceded that there is no such finding, it by no means follows that the failure to so find defeats the appellee's right to recover. The answer of payment raised an affirmative issue which the appellant was bound to prove. If the facts found do not determine this issue in his favor, the appellant fails in his plea. Vannoy v. Duprez, 72 Ind. 26; Dodge v. Pope, 93 Ind. 480; Gray v. Taylor, 2 Ind.App. 155, 28 N.E. 220.
It is further urged that the ultimate fact as to how much was due the appellee was not found by the court. But the facts found, when taken together, show that there was due the appellee the sum of $ 450. The appellant had purchased the horse, and it was of the value of $ 500; $ 50 of this amount had been paid. These facts warranted the inference drawn by the court in its second conclusion, that the appellee was entitled to recover the unpaid balance of that value, to wit, $ 450, without a specific statement that the amount of $ 450 was still due.
Some question is made, also, that the facts found show no diligence in the collection of the note. We have already seen that the facts found amply support the second paragraph of the complaint, and the question of the assignment of...
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