Bunting v. Mick
| Decision Date | 11 May 1892 |
| Docket Number | 500 |
| Citation | 31 N.E. 378,5 Ind.App. 289 |
| Parties | BUNTING v. MICK |
| Court | Indiana Appellate Court |
R. N Lamb and R. Hill, for appellant.
A. L Mason, for appellee.
Action by the appellee against the appellant on an instrument of writing which reads as follows:
It was averred in the complaint that this was a promissory note negotiable by the law merchant, and as such it was treated by the court. It was further averred "that before maturity of said note said Hodgson sold and assigned the same, in writing, by endorsing his name thereon, for a valuable consideration, to J. Frank George, who became the owner thereof, in good faith, in due course of business; that before maturity thereof said George sold and assigned the same by endorsement of his name thereon to the plaintiff, who became the owner thereof, for a valuable consideration, in good faith, in due course of business, and still owns the same."
The appellant answered in two paragraphs. The first of these set up a want of consideration, the second averred that the note was procured by Hodgson, the payee, from the maker by means of certain fraudulent representations going to the consideration, and rendering the same void.
To each of these paragraphs of answer the appellee filed a demurrer which was sustained by the court. The appellant thereupon filed a third, fourth, fifth and sixth paragraph of answer. The third paragraph averred a want of consideration, but alleged in addition that the appellee and his endorser, at the time of the assignment to them, respectively, had notice of such defence.
The fourth, fifth and sixth paragraphs set up the same fraudulent representations pleaded in the third paragraph, but in addition thereto averred notice on the part of the appellee and George, his endorser, at the time of the respective assignments, and that these were made without any consideration whatever and after the maturity of said note.
The sustaining of the demurrer to the first and second paragraphs of the answer is the first alleged error for which the appellant insists the judgment should be reversed.
Appellee's counsel contend that even though it should be conceded that there was error in sustaining the demurrer, still such error must be treated as harmless in view of the fact that by repeating the averments of the 1st and 2d paragraphs of the answer in the subsequent paragraphs thereof, the appellant received the full benefit of such averments. We feel quite certain that this position can not be maintained. The 1st and 2d paragraphs, to which the demurrer was addressed and sustained, contained no averments of notice of the defences which the maker had to the note, on the part of the endorsees, George and Mick, at the time of the respective endorsements to them. By sustaining the demurrer and requiring the appellant to set up in subsequent paragraphs, in addition to the averments of want of consideration and fraud, the fact that both appellee and George at the time of the endorsements to them had notice of such defences, the court in effect decided that an answer of the character of these, without the averment of such notice was insufficient, and that such averment was required to make it sufficient. If the paragraphs to which the demurrer was sustained were good, however, without such averment of notice, then the fact that they were subsequently pleaded again, supplemented by the averment of notice, can not be said to make the error harmless. The additional paragraph can not be regarded as an amendment to the paragraphs to which the demurrer was sustained and as taking the place of these. If the answers to which the demurrer was sustained were good without charging notice to the endorsees, the court should have overruled the demurrer. The appellant had a right to this ruling so as to be informed whether or not he was to take the burden upon the subject of notice, or whether it should devolve upon the appellee to aver and prove a want of notice. Hence we must conclude that if there was error in sustaining the demurrer to the 1st and 2d paragraphs of the answer, such error was not harmless. We pass, therefore, to the consideration of the sufficiency of the 2d paragraph of the answer, for it is to this paragraph alone that counsel for appellant have confined their argument.
To begin with, we are of opinion that the instrument declared upon in the complaint was a promissory note, negotiable by the law merchant. Though somewhat singular in its phraseology, we think it amounts to a promise to pay money, and is a negotiable instrument under section 5501, R. S. 1881. It is payable to order, and in a bank in this State, and is, therefore, negotiable as an inland bill of exchange. Section 5506, R. S. 1881.
Treating the...
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