"Count
1. That the defendant denies each and every allegation
contained in the petition herein, except such as is expressly
admitted.
"Defendant
admits that he signed a note which he assumes is the one in
controversy, but that he demands its production and proof at
the trial herein.
"Count
2. For further answer, defendant says that the note attached
to the plaintiff's petition herein is a renewal note,
given as the last of a series of renewal notes, the original
of which note was given under the following conditions, to
wit:
"P.
F. McCarthy, the indorser on said note, was then, has been
since, and is now, a director and officer in the Home Savings
Bank, the plaintiff in this case. That he was desirous of
securing a loan in the sum of $ 4,500 from the Home Savings
Bank, with which to purchase stock in the Cleveland Baseball
Club. That, at the same time, the said P. F.
McCarthy was also a director and officer in the Inter-State
Material Company, a corporation of which the defendant was
the manager, working on a salary for said company, of which
P. F. McCarthy was the majority stockholder. That the
original note was given for the purpose of securing money for
P. F. McCarthy, and he did secure the money, all to the
knowledge of the Home Savings Bank, plaintiff herein. That,
in order to secure this money, the defendant signed the note,
and P. F. McCarthy indorsed the same, and put up as
collateral on said note $ 5,000 worth par value of shares in
the Inter-State Material Company, of which the said P. F.
McCarthy was a director, officer, and the largest individual
stockholder. That the defendant does not know if the said
stock was, at that time, issued in his or P. F.
McCarthy's name, but believes it was issued in P. F.
McCarthy's name. That the said P. F. McCarthy got all of
the money on said note from plaintiff, and the said defendant
got nothing, and has to this day received nothing for his
signature on said note, except as aforesaid, and as to said
defendant there is a failure and want of consideration, all
of which was well known to the Home Savings Bank at the time
of the giving of the original note and at the time of the
other renewal notes and the present note.
"That
it was understood and agreed by and between the defendant and
P. F. McCarthy that the note was to be paid only by B. H.
Kelley
when dividends had been received sufficiently from said
Inter-State Material Company to pay said note. That the said
Inter-State Material Company was insolvent at that time, and
was known to be so by plaintiff and P. F. McCarthy, and never
earned dividends to pay the note, and is now dissolved, so
that the note never became due, as between the defendant and
P. F. McCarthy, and said note really represents a loan of
money by plaintiff to P. F. McCarthy.
"That
these matters were fully known to and by the plaintiff
herein, and it is thereby estopped to claim that the
defendant should pay this note to the said plaintiff under
the terms and conditions on which this note was originally
given.
"That,
in this entire transaction, the defendant herein was securing
this money for P. F. McCarthy, and not for the use and
benefit of the defendant. That, at and prior to the time the original note was first given, the plaintiff
had full knowledge of all the facts above set forth.
"That
the said P. F. McCarthy, indorser on said note, is the real
party in interest herein, and that this defendant does not
owe the plaintiff anything herein, for the reason that the
said note was given for the benefit and use of said P. F.
McCarthy, with the knowledge and consent and concurrence on
the part of the plaintiff, in order to carry out the
transaction of the plaintiff and P. F. McCarthy in loaning
the said P. F. McCarthy money.
"That
the said P. F. McCarthy raised the salary of the defendant
herein in the Inter-State Material Company to the extent of
the amount of interest payable on said note, and at various
times has himself paid the interest on said note, or the
renewal note herein, to the Home Savings Bank, the plaintiff
in this cause of action; and the said P. F. McCarthy and
plaintiff in this cause estopped to claim payment of said
note from the defendant.
"That
the note shows on its face that the said P. F. McCarthy is an
indorser on this said note, and that he has not been sued in
this cause of action.
"Defendant
further states that plaintiff, in his petition herein, is
asking for attorney's fees, and that attorney fees are
not allowable, according to the note, on the sale of
collateral. That the plaintiff does not set out any
collateral on said note, or account for its failure to
indorse the same, but leaves the note blank on this
proposition, so that the defendant is not informed in any way
of the disposition of the said collateral, but believes, from
the allegation asking for attorney fees, that it has sold the
same, or has in some other manner disposed of, lost, or
gotten rid of said collateral, and so alleges the fact to be
that the plaintiff has wrongfully and negligently sold, lost,
or disposed of and gotten rid of the collateral which was put
up to secure the original note herein and the renewal notes
of which said note is one. That the plaintiff should account
for the money received on the sale of this collateral, or for
its value at the time of its disposition, or for its loss, in
case it is lost, and the amount found to be due applied on
said note.
"That
by reason of the foregoing facts the said P. F. McCarthy is a
necessary party defendant in this suit, and the real party in interest; and the defendant asks the court
that he be made a party hereto, and that the cause of action
be continued until such time as he may have become and been
made a party to this suit and have fully answered herein.
"Wherefore,
the defendant asks that the said P. F. McCarthy be made a
party to this suit, and that plaintiff be compelled to make a
full and complete accounting of the collateral and its
disposition, the money or other property secured on its
disposal, and that the present defendant, B. H. Kelley, be
dismissed, with his costs. Plaintiff is required to answer
the interrogatories of the defendant hereto annexed."