Brown v. Jones

• Decision Date: 14 October 1890
• Docket Number: 14,442
• Citation: 25 N.E. 452,125 Ind. 375
• Parties: Brown v. Jones et al
• Court: Indiana Supreme Court

25 N.E. 452

125 Ind. 375

Brown v. Jones et al

No. 14,442

Supreme Court of Indiana

October 14, 1890

From the Warren Circuit Court.

Judgment affirmed, with costs.

J McCabe and E. F. McCabe, for appellant.

C. V McAdams, for appellees.

OPINION

Berkshire, C. J.

This was an action upon a bill of exchange drawn by the appellant, payable to his own order and endorsed by him to the appellees.

The case has been here once before, but the questions now involved were not then before the court for consideration. Brown v. Jones, 113 Ind. 46, 13 N.E. 857.

After the cause had been remanded to the trial court for a new trial, the appellees obtained leave to amend their complaint, and did amend it. Thereafter the appellant withdrew his answers, and filed a demurrer to the complaint.

The court overruled the demurrer, and the appellant saved an exception, and filed an answer in general denial.

The cause being at issue the appellant moved the court for a judgment on the state of the pleadings. This motion was overruled, and an exception reserved, and afterwards a bill of exceptions was filed.

After overruling the motion of the appellant for judgment the cause was submitted to the court for trial, with a request for a special finding. A special finding was thereafter returned, and to the conclusions of law therein announced the appellant saved an exception, and the court gave judgment for the appellees.

The errors assigned are as follows:

1. Overruling the demurrer to the complaint.

2. Overruling the motion for judgment on the state of the pleadings.

3. Error in the conclusions of law.

No specific causes for giving judgment in favor of the appellant upon the state of the pleadings were stated in his motion, and if for no other reason the court might for this reason have very properly overruled the motion.

The motion should have been so drawn as to direct the court's attention to the questions sought to be raised thereby. It is the business of the court to consider such questions as its attention may be called to if they are properly before it, but none other. But counsel for the appellant, in their argument, inform us that the motion was grounded on the insufficiency of the complaint, and that being the case the same questions are raised by the first assigned error. We have carefully examined the complaint, and have no hesitation in holding it good.

The action rests upon a bill of exchange drawn by the appellant in favor of himself upon a firm doing business in the city of Chicago, State of Illinois. After its acceptance it was endorsed to the appellees. The point is made that it does not appear by averment in the complaint whether the bill was endorsed before or after its acceptance, and on the assumption that the presumption arises that the endorsement was before its acceptance the argument is built. But as the complaint clearly shows that the bill was accepted before its endorsement, the argument can have no weight.

It is contended that the copy of the acceptance filed with the complaint limited the time of payment to twenty-eight days from the date of the bill, and hence it was not protested in time, and therefore the drawer was discharged. But as the acceptance is not the foundation of the action, the copy thereof filed with the complaint can not, as contended, control the averments of the complaint.

The court did not err in its conclusions of law. The bill was drawn on February 11, 1884, and accepted on the same day. It was a thirty-day bill. The acceptance was without qualification, except as to the place of payment. It required presentation at No. 136 East Kinzie street, Chicago, Illinois, which was the place of business of the acceptors.

There were twenty-nine days in February, 1884, hence the bill was payable on the 12th day of March, and when three days of grace are added thereto we have reached the 15th of said month, which was the day on which the bill was presented for payment, and protested for non-payment; and this was the proper date for presentment and protest. Helphenstine v. Vincennes Nat'l Bank, 65 Ind. 582.

The further point is made that there is a variance between the allegation in the complaint (which is supported by the special finding) and the notice which was given to the defendant of the dishonor of the paper. The complaint alleges, and the special finding so finds, that the bill was taken to the place designated in the acceptance as the place of payment, and that the building was unoccupied and closed, and no one could be found to whom presentment for payment could be made, while the notice states that the bill was duly presented for payment.

There is nothing in the distinction attempted to be drawn. In legal effect the bill was presented and payment refused; at least we can not see how the appellant can be prejudiced because of the failure of the notice to recite the facts as they occurred. See Henry v. State Bank, 3 Ind. 216; Tiedeman Com. Paper, section 346; Randolph Com. Paper, section 1226.

After protesting the bill the notary, who executed the same, mailed a notice thereof at the post-office in Chicago, Illinois, to the Citizens' Bank of Attica, Indiana, addressed to said bank at that place, with directions to said bank to forward the same to the appellant, his address not being known to the said notary. The said notice was mailed on the 16th of March, the next day after the protest was made, and was received by the said bank on the 18th of the said month, and mailed by the first mail going to the appellant's post-office after its receipt, and was received by the appellant on the 20th of said month.

It is contended that the notice was not mailed by the notary at Chicago within the proper time. We...