Fudge v. Marquell
| Decision Date | 30 March 1905 |
| Docket Number | 20,397 |
| Citation | 73 N.E. 895,164 Ind. 454 |
| Parties | Fudge v. Marquell |
| Court | Indiana Supreme Court |
Original Opinion of November 29, 1904, Reported at: 164 Ind 447.
Appellant 's petition for a rehearing assails substantially every conclusion of the court announced in the original opinion and upon practically the same authorities and the same argument advanced in the original brief we are asked to change our decision in this case. The cause was carefully considered before the decision was rendered, and upon reexamination of the questions presented we find no reason for changing the result then reached.
Appellant's counsel insist with great earnestness that the answer of non est factum is incompatible and inconsistent with the eighth paragraph of answer, which admits under oath the signing and delivery of a note for $ 700, payable to John M. Fudge, but alleges that after the execution of said note it was altered, without the knowledge or consent of defendant, by raising the face of the note to $ 765, and substituting Lewis N. Martin as payee, and we are urged to declare the law to be that one of these answers nullifies and overthrows the other, and that they can not stand together.
It is asserted by counsel that the eighth paragraph of answer is a solemn admission in judicio of the execution of the note sued upon, which note is for $ 765, and payable to Lewis N. Martin. The fallacy of the entire argument grows out of this erroneous assumption. Appellant declares, and must recover if at all, upon a note for $ 765, payable to Martin; and appellee in no manner and by no means admits the execution of this note. On the contrary, appellee denies under oath in each paragraph of the answer the execution of this note, but in the eighth paragraph admits that the signature upon the paper sued on is genuine, but avers that the note otherwise is a forgery. The eighth paragraph of answer is in entire harmony with the second and third, and is negative in character, in this, that it denies the execution of the note in the form and substance as declared upon in the complaint, and affirmative only in so far as it specifically points out the alterations relied upon to defeat a recovery. If appellant may rightfully insist upon this paragraph of answer as an admission against appellee, she must accept the admission with the accompanying qualifications. The answer must be taken as a whole, as tendered. The answer that the signature is genuine, but the note otherwise false and forged, all taken as true, would be an admission of little value to appellant, and if it were the only answer on file would not serve as a confession of the cause of action, or justify a recovery in the absence of proof otherwise. Childers v. First Nat. Bank (1897), 147 Ind. 430, 46 N.E. 825.
In the case of Wiltfong v. Schafer (1889), 121 Ind. 264, 266, 23 N.E. 91, a similar answer was criticised by counsel as both admitting and denying the execution of the note in suit, and in response thereto, the court said:
The burden of proving the material allegations of a complaint when denied by the defendant, in all cases rests upon the plaintiff. In this case appellant, at common law, would have been required upon an answer in general denial to prove by a preponderance of evidence the signing and delivery of the note in the amount and terms substantially as...
To continue reading
Request your trial