Fordyce v. Nelson

• Decision Date: 24 November 1883
• Docket Number: 10,883
• Citation: 91 Ind. 447
• Parties: Fordyce v. Nelson
• Court: Indiana Supreme Court

91 Ind. 447

Fordyce v. Nelson

No. 10,883

Supreme Court of Indiana

November 24, 1883

From the Daviess Circuit Court.

The judgment is affirmed, at the costs of the appellant.

J. H Stotsenburg and C. S. Dobbins, for appellant.

W. R Gardiner and S. H. Taylor, for appellee.

OPINION

Bicknell C. C.

The appellee, as the endorsee and assignee of two promissory notes made by the appellant, brought this suit against him.

The complaint was in two paragraphs, each of which averred the execution of a note by the defendant, its endorsement before maturity by the payee to the firm of Nelson & Noel, and the assignment by Noel of all his interest to his partner the plaintiff, before the maturity of the paper.

Copies of the notes were made a part of the complaint; they were alleged to be due and unpaid, and each paragraph set forth certain statutes of Missouri, in which State the notes were alleged to have been executed and were payable, and each paragraph averred protest and notice, and claimed tat under said statutes the plaintiff was entitled to recover not only principal and interest, but also four per cent. as damages.

Noel was made a co-defendant to answer as to his interest, and he answered admitting the complaint to be true.

The defendant Fordyce answered in four paragraphs, of which the first and third only are material here. The first was the general denial; the third was a special plea of failure of consideration. The plaintiff replied in denial of the third.

The issues were tried by the court without a jury, and the finding was for the plaintiff--$ 2,103.85; this was about 60 cents less than the principal and interest due upon the notes at the time of the trial; there was nothing found for the plaintiff as to the four per cent. damages claimed under the Missouri statutes.

Judgment was rendered against the defendant for the amount of the finding. The defendant's motion for a new trial was overruled. The defendant appealed. He assigns as errors:

1. That the complaint does not state facts sufficient.

2. That the court overruled the motion for a new trial.

The reasons alleged for a new trial are, that the finding is contrary to law, and is not sustained by sufficient evidence.

The complaint contains a good cause of action as to the principal and interest due on the notes. Where a note is owned by two, an assignment by one of them of his half of the note is a good assignment in equity. Groves v. Ruby, 24 Ind. 418. In an action by the endorsee against the maker, it is not necessary to set out a copy of the endorsement. Treadway v. Cobb, 18 Ind. 36; Kline v. Spahr, 56 Ind. 296; Keith v. Champer, 69 Ind. 477.

The first assignment of error can not be supported, and we think the finding was sustained by the evidence, and was not contrary to law.

The third defence was as follows:

That Ewing & Allen, the payees of the notes, proposed to procure the organization of a company or corporation with a paid-up capital of $ 100,000, to take a lease of defendant's furnace and lands in Martin county, Indiana for two years, at a yearly rent of $ 8,000, and that the members of said company or corporation should be well acquainted with the business of carrying on iron works, and should be wealthy and responsible men and would pay all the debts and liabilities of said business, including said rent to defendant; that defendant, relying on said representations, executed said notes, and that said representations were the sole and only consideration of said notes; that said Ewing & Allen did procure the organization of a company or corporation, known as the Nelson Iron and Coal Company, and procured said company to take such a lease from the defendant, and defendant performed all his part of said contract, and executed such lease to said company, who accepted the same and began operations under it; that all of the said representations of said Ewing & Allen were false and fraudulent, and were by them known so to be at the time they were made, and were made for the purpose of cheating and defrauding the defendant; that said company had not a capital of $ 100,000, but had only $ 20,000, not enough to carry on the business, and were not responsible, and did not pay said rent, and in consequence of their ignorance of the business and want of capital they carried on the furnace only about five months, and then abandoned it and forfeited the lease, leaving the rent entirely unpaid; that the plaintiff, when he took the assignments of said notes, well knew that they were obtained by said fraud and false representations, as also did the payees and endorsers of said notes, and that said notes were not transferred, in writing thereon, to ...