Fudge v. Marquell
| Decision Date | 29 November 1904 |
| Docket Number | 20,397 |
| Citation | 72 N.E. 565,164 Ind. 447 |
| Parties | Fudge v. Marquell |
| Court | Indiana Supreme Court |
Rehearing Denied March 30, 1905, Reported at: 164 Ind. 447 at 454.
From Delaware Circuit Court; Joseph G. Leffler, Judge.
Action by Susannah E. Fudge against Henry M. Marquell. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Affirmed.
William W. Orr and Harry H. Orr, for appellant.
James N. Templer and Edward R. Templer, for appellee.
Appellant in this action (plaintiff below) alleged in her complaint that appellee Henry M. Marquell and Willard E. Baldwin, on February 6, 1899, executed a promissory note payable to the order of Lewis N. Martin at the Delaware County National Bank of Muncie, Indiana, for the sum of $ 765, with interest and attorneys' fees; that Martin, before the maturity of this note, assigned it, by indorsement, to John M. Fudge, who subsequently, before its maturity, in like manner assigned it to the plaintiff. Appellee filed his answer to the complaint in eight paragraphs. Appellant's demurrer was sustained to the fourth, fifth, sixth and seventh, leaving therein the first, second, third and eighth paragraphs. Upon leave of court appellee filed an additional paragraph, numbered nine.
The first paragraph of the answer in question is the general denial. The second is a plea of non est factum. The third is likewise an answer of non est factum, whereby appellee alleged that he did not execute the note in suit; that the same was not his act or deed. The eighth paragraph appears to be a special plea of non est factum by which appellee admits that he signed the note in suit, but avers that since he signed the same it has been altered and changed, without his knowledge or consent, in this: At the time he signed the note it called for $ 700, as principal, and John M. Fudge was the payee therein. Said principal sum has been changed so as to make the note call for $ 765, and the payee has been changed from John M. Fudge to one Lewis N. Martin. By the ninth paragraph it is averred that the plaintiff is not the bona fide holder or owner of the note in suit; that John M. Fudge is the owner thereof, etc. The answer, except the ninth paragraph, is verified by the affidavit of appellee. Plaintiff replied by the general denial. The issues as joined were tried by a jury, and a verdict returned in favor of appellee. Along with this verdict the jury returned answers to a series of interrogatories. Over appellant's motion for a new trial judgment was rendered that she take nothing by her action, and that the defendant recover of her his costs laid out and expended.
The general error relied on by appellant for a reversal arises out of the ruling of the court in denying the motion for a new trial. The specific grounds advanced and argued by her counsel are (1) that the verdict is not sustained by sufficient evidence and is contrary to law; (2) surprise occurring at the trial; (3) error of the court in admitting in evidence the tax schedules of plaintiff for the years of 1900 and 1901; and (4) that the court erred in giving certain instructions to the jury.
The contention of appellant's counsel that the evidence is not sufficient to sustain the verdict and is also contrary to law is untenable. The evidence discloses that John M. Fudge, the husband of appellant, prior to February 6, 1899, was conducting a boot and shoe store at the town of Albany, Delaware county, Indiana. About that date it appears that he sold his stock of goods to Willard E. Baldwin, who is the principal in the note in suit. A part of the purchase price for the sale of the goods was paid in cash, and the remainder was to be settled by Baldwin executing notes with surety thereon. It appears to have been agreed between Baldwin and appellee that the latter would become his surety on two notes to be executed by him to Fudge for the deferred payments of the purchase money. At the trial appellee testified positively that Baldwin presented two notes for him to sign as surety, each of which was payable to John M. Fudge, and not to Lewis N. Martin, who appears as the payee in the note in suit. One of the notes was for $ 700, and the other for $ 800. Appellee testified that these notes were the only notes which he signed as surety for Baldwin, and that he never signed nor executed the note upon which appellant sought to recover against him in this action. It is true that his evidence upon the issue of non est factum was controverted by two witnesses introduced by appellant, one being her husband, John M. Fudge, and the other Joseph Le Favour, one of her attorneys in the suit. Appellee, however, appears to have introduced evidence which tended to impeach the character of these witnesses; and the jury seem to have accepted the testimony of appellee, along with the other circumstances, as the most credible evidence, for it is expressly disclosed by their answers to the interrogatories that they found in favor of appellee upon the issue of non est factum. In reviewing the sufficiency of evidence to sustain the judgment below, we consider only that which is most favorable to the prevailing party in the lower court; and, if it is sufficient to support the judgment in all material respects, we can not, under such circumstances, disturb it, although the preponderance may apparently be in favor of the losing party.
In regard to the question urged by appellant, that she was surprised at the trial by the evidence given by appellee to the effect that he did not execute the note in controversy, it may be said that there are no substantial grounds or reasons presented by her to sustain this contention. Appellee's answer tendering the issue of non est factum had been on file some three months before the trial of this cause. She certainly should have anticipated that he would testify in support of this issue. While it is true that § 568 Burns 1901, § 559 R. S. 1881, provides that a new trial may be granted for "surprise which ordinary prudence could not have guarded against," nevertheless it is well settled that a party has no reason to be surprised at evidence introduced by his adversary which was admissible under the issues in the case. Helm v. First Nat. Bank (1883), 91 Ind. 44; Bingham v. Walk (1891), 128 Ind. 164, 27 N.E. 483; Working v. Garn (1897), 148 Ind. 546, 47 N.E. 951; Ellis v. City of Hammond (1901), 157 Ind. 267, 61 N.E. 565.
On the trial, appellee, over the objections of appellant, was permitted to introduce in evidence the tax lists or schedules of appellant returned for the years of 1900 and 1901. These lists were shown to have been made by her under...
To continue reading
Request your trial