Bradley v. Whicker

• Decision Date: 29 November 1899
• Citation: 55 N.E. 490,23 Ind.App. 380
• Parties: BRADLEY et al. v. WHICKER.
• Court: Indiana Appellate Court

23 Ind.App. 380

55 N.E. 490

BRADLEY et al.

v.WHICKER.

Appellate Court of Indiana.

Nov. 29, 1899.

Appeal from circuit court, Tipton county; W. W. Mount, Judge.

Action by Bradley, Holton & Co. against Lucy Whicker. From a judgment for defendant, plaintiffs appeal. Reversed.

Oglebay & Oglebay, for appellants. Waugh, Kemp & Waugh, for appellee.

ROBINSON, J.

Appellants sued appellee on a promissory note payable in a bank in this state. Appellee had judgment. Overruling appellants' motion for a new trial is assigned as error.

Appellee's counsel argues that no question is presented, because the bill of exceptions containing the evidence is not properly in the record. The bill was presented to the judge June 11th, and signed and ordered made part of the record June 14th. The record recites that, on June 14th, “comes now the plaintiff, and files her bill of exceptions number two.” The clerk certifies that the bill was filed on that day. It was filed within the time allowed. There was no bill of exceptions until it was signed by the judge. Galvin v. Crouch, 56 Ind. 51. We cannot presume that the clerk certified what was untrue. From the record entry and clerk's certificate but one inference is permissible, and that is that the judge signed the bill, and it was then filed. This same question was presented in Martin v. State, 148 Ind. 519, 47 N. E. 930, and the bill held to be in the record. Ewbank, Ind. App. Proc. § 30.

The complaint avers that the note, which is payable in a bank in this state, was indorsed by the payees, before due and for value, to appellants, who took it in the usual course of trade, and without any notice of any defense. The note is payable to order in a bank in this state, and is therefore negotiable as an inland bill of exchange. Burns' Rev. St. 1894, § 7520.

The fourth paragraph of answer alleges, in substance, that the note was executed for the purchase price of a buggy, which the payees falsely and fraudulently represented to be new and of the value named in the note; that in truth the property was old and secondhand, and worth not to exceed a named sum; that it had been newly painted and varnished, so that its real condition could not be observed; that appellee having no knowledge of its value, or that it was old, of which the payees of the note well knew, but relying upon the false and fraudulent representations so made, and believing them to be true, executed the note; that immediately upon discovery that the property was old, and of the fraud perpetrated upon her, she delivered it back to the payees, who at the time held the note, and demanded the note, which they refused to surrender; that appellants did not pay a valuable consideration for the note, did not purchase it before maturity, and had full knowledge at the time of the purchase of the note of this defense. This court has held in Bunting v. Mick, 5 Ind. App. 289, 31 N. E. 378, 1055, that if a plaintiff, in a case like this, avers that he held the note in good faith, obtained it before maturity, for a valuable consideration, and without notice of any defense on the part of the maker, the defendant must meet this in his answer; and if the maker answers with a defense against the payee, and also pleads facts denying plaintiff's want of notice, it would be good against a demurrer. The same case also holds that, if the plaintiff fails to aver that he took the note without notice of any defenses on the maker's part, the defendant need not allege in his answer that the plaintiff had notice of such defenses. If the plaintiff says nothing about want of notice, and the defendant pleads fraud against the payee, the plaintiff must reply want of notice. That is, from the case of Bunting v. Mick, supra, and the cases cited in that opinion, the rule is that the burden is on the plaintiff to show that he is a bona fide holder, and that this includes proof that he obtained the note without notice of the defense; and we take it that the plaintiff may assume this burden...