Fisher v. Fisher

• Decision Date: 28 February 1888
• Citation: 113 Ind. 474,15 N.E. 832
• Parties: Fisher v. Fisher.
• Court: Indiana Supreme Court

113 Ind. 474

15 N.E. 832

Fisher

v.Fisher.¹

Supreme Court of Indiana.

February 28, 1888.

Appeal from circuit court, Huntington county; Henry B. Sayler, Judge.

Kenner & Dille, for appellant. Branyan, Spencer & Branyan, for appellee.

Howk, J.

This was a suit by appellant, Frank I. Fisher, as plaintiff, against appellee, Tillman H. Fisher, as defendant, upon a promissory note for $464.35, dated July 1, 1877, and alleged to be due and unpaid. The cause was put at issue and tried by a jury, and a verdict was returned for defendant; and, over plaintiff's motions for a new trial, and in arrest, it was adjudged that he take nothing by his suit, and that defendant recover his costs. Errors are assigned here by plaintiff, which call in question the overruling of his separate demurrers, to the first and second paragraphs of defendant's answer: (2) His motion for a new trial; and (3) his motion in arrest of judgment.

In the first paragraph of his answer, defendant averred, among other things, “that the said note was given without any consideration whatever,” of this paragraph of the answer plaintiff's counsel say: “It might be good if the facts were properly pleaded, but they are so meager that we believe the paragraph is insufficient.” The averment we have quoted, of itself, constitutes a good defense to the note in suit, and makes the paragraph of the answer amply sufficient to withstand the plaintiff's demurrer thereto. In an action upon an executory contract, such as is the case under consideration, it has been uniformly held by this court that a general plea to the effect that such contract was made or given without any consideration whatever, constitutes a good and sufficient defense in bar of the action. Webster v. Parker, 7 Ind. 185;Billan v. Hercklebrath, 23 Ind. 71;Bush v. Brown, 49 Ind. 573;Moore v. Boyd, 95 Ind. 134.

Plaintiff's demurrer to the first paragraph of the answer was correctly overruled. In the second paragraph of his answer defendant admitted his execution of the note in suit, but he averred that such note was given for an illegal consideration, in this, that the only consideration for such note was the payment of margins on wheat that had never been delivered to defendant by plaintiff, nor by any one for him; and that no other consideration of any other kind entered into such note. Wherefore defendant said that the note sued on was voidable, and he asked that the same be canceled, and that he have judgment for his costs.

We are of opinion that the facts stated by defendant in the second paragraph of his answer, the substance of which we have given, were not sufficient to show that the consideration of the note in suit was illegal, and that plaintiff's demurrer to such paragraph ought to have been sustained. In this state it is settled law that a promissory note, whether negotiable under the law merchant or assignable under the provisions of our statute, imports a sufficient consideration, and in a complaint thereon the consideration of the note need not be averred. Section 5501, Rev. St. 1881; Tibbetts v. Thatcher, 14 Ind. 86;Durland v. Pitcairn, 51 Ind. 426;Railway Co. v. Caldwell, 98 Ind. 245. Where, therefore, in an action upon a promissory note, the maker thereof pleads in bar of the action, that the note sued on was given upon an illegal consideration, he must state fully and...