Butler v. Edgerton

• Decision Date: 26 November 1860
• Citation: 15 Ind. 15
• Parties: Butler and Another v. Edgerton
• Court: Indiana Supreme Court

15 Ind. 15

Butler and Another v. Edgerton

Supreme Court of Indiana

November 26, 1860

APPEAL from the Wayne Circuit Court.

O. P Morton, Caleb B. Smith, F. Kibbey, and Watt. J. Smith, for appellants.

J. S Newman and O. Newman, for appellee.

OPINION

Perkins, J.

Suit by Edgerton to recover the amount due upon an instrument reading as follows:

"Tenth Month, 31st, 1857.

This is to certify that we, Nathan George and William Butler, of Wayne county, State of Indiana, having sold to Walter Edgerton, of Henry county, State aforesaid, on the 30th of tenth month, 1854, two five hundred dollars real estate mortgage bonds on the Cincinnati and Chicago Railroad Company, drawing 10 per cent. interest per annum, payable half yearly, and due the 1st of May, 1859 (Butler and Meredith, trustees), and at the time entered into an obligation to secure to the said Walter Edgerton the payment of the said interest as it should come due, and the bonds themselves when they should become due; and desiring to avail ourselves of the privilege of disposing of said bonds, for which we have been standing accountable, before the arrival of the said 1st of May, 1859, have taken the said bonds of the said Edgerton, and do hereby promise to pay the sum of one thousand dollars, to the said Walter Edgerton, or order, on or before the 1st of fifth month, 1859; and also to pay to him the same interest that would have accrued on said bonds; that is, 10 per cent. per annum; and to pay it up every half year from the date of this obligation.

"William Butler.

"Nathan George."

The complaint sets out specially the consideration for which the instrument was given, besides furnishing a copy of the instrument.

Breach, by non-payment, alleged.

The defendant answered:

1. By general denial.

2. By a general allegation, that the instrument was executed without any consideration therefor.

This paragraph was included in the general denial, as the complaint specially set out the consideration. And if evidence to contradict the statement of the consideration contained in the agreement could have been given under the special, it could have been under the general paragraph. The special paragraph, therefore, might have been rejected on motion. It added nothing to the defense. Ind. Dig. 655.

3. Other paragraphs set up illegality in the bonds mentioned in the instrument, and others still, usury, which, it is claimed, also taints the instrument sued on.

The plaintiff replied; "that the said several bonds in the agreement in his complaint specified and sued on, and the several sums of money therein set forth, and the interest thereon payable semi-annually, were and are, by the agreement of the parties thereto, made payable at the office of the Ohio Life Insurance and Trust Company, in Cincinnati, in the State of Ohio; and that John McLean, the payee of said several bonds, at the time of the execution of said bonds, was, and ever since has been, and still is, a citizen and resident of the State of Ohio, and said city of Cincinnati: That heretofore, to wit, on the 14th day of March, 1850, the General Assembly of the State of Ohio passed an act of said State, in the words and figures following, that is to say:

'An act to amend an act entitled an act fixing the rate of interest, passed January 12, 1824, and all laws on that subject, passed March 14, 1850, took effect May 1, 1850.

'Section 1. Be it enacted by the General Assembly of the State of Ohio, That the parties to any bond, bill, promissory note, or other instrument for the payment or forbearance of money, may stipulate therein for interest receivable, upon the amount of such bond, bill, note or other instrument, at any rate not exceeding 10 per centum yearly.'

"And the plaintiff avers that said act of the General Assembly of the State of Ohio, became the law of the State of Ohio, on the 1st day of May, 1850, and at the date of the execution of said several bonds, and their negotiation, and for six years thereafter, so remained the law of said State, wherefore, &c."

The cause was tried by the Court, and there was judgment for the plaintiff for the amount specified in the instrument, with interest at 10 per cent.

Before proceeding to the main questions in the cause, we may dispose of one of practice.

There was no reply to the paragraph of the answer, above set out, averring generally a want of consideration; and it is claimed that there was a trial without an issue, and that such trial constitutes an error, for which the judgment must be reversed.

As all the evidence that could have been given under the paragraph in question was admissible, as we have seen, under the general denial, a case is not presented for the application of the rule reversing a judgment for the want of an issue at the trial.

Again: this error was not assigned as a ground for the motion for a new trial; and if going to trial without an issue is an error occurring at the trial, it is waived by omitting to assign it as a cause for a new trial. Kent v. Lawson, 12 Ind. 675. This point we suggest, but do not decide.

Further: trial without an issue, is not one of the errors assigned upon the record in this Court.

We now advance to the two main questions in the cause, which are:

1. Was the instrument sued on executed upon a valid...