Jackson v. City Nat. Bank

• Decision Date: 10 October 1890
• Parties: Jackson et al. v. City Nat. Bank.
• Court: Indiana Supreme Court

125 Ind. 347

25 N.E. 430

Jackson et al.

v.City Nat. Bank.

Supreme Court of Indiana.

Oct. 10, 1890.

Appeal from circuit court, Elkhart county; J. D. Osborne, Judge.

H. C. Dodge, for appellant Jackson. John H. Baker and Francis E. Baker, for appellee.

Olds, J.

The appellee sued the appellants upon a promissory note dated May 6, 1887, due on June 23, 1887, for $1,500, with 8 per cent. interest, and payable at the City National Bank of Goshen, Ind. The appellant Amos C. Jackson filed a separate answer in one paragraph, in substance as follows: He admitted the execution of the note to the City National Bank, as alleged in the complaint, but averred that, on November 7, 1881, he borrowed the money represented by said note of and from said plaintiff, and executed his note therefor, with his co-defendant as surety, due in 90 days from said date. Hitherto, until the date of the execution of the note mentioned in the complaint, every 90 days, at the request of the plaintiff, he executed a new note, his co-defendant signing as surety with him for said debt, in renewal of said original note, and took up the note next theretofore executed; and he avers that the indebtedness represented by the note mentioned in the complaint is the same identical indebtedness which he incurred to said plaintiff at the date first above mentioned, and no other, and the note mentioned in the complaint is a renewal of said original loan; that the consideration of said original note and the one mentioned in the complaint was for money loaned by the plaintiff to the defendant for the purpose, at the time of such loan, of being wagered by the defendant in purchasing options in wheat and other grain, pork, and lard and articles of produce, and in making contracts upon margins, and gaming and wagering upon the future price of wheat, grain, and produce, and making good and paying any losses that might and did accrue to defendant in certain wagering, gambling, immoral, and illegal contracts entered into by the defendant personally, and by and for his agents, for the purchase of certain margins on wheat and other grain, pork, lard, and produce, and options in the same, with the understanding, agreement, and intention by the defendant and the parties with whom such illegal, immoral, gambling and wagering contracts were made that the said wheat and other grains, pork, lard, and produce, so illegally and immorally contracted for and purchased, was not to be delivered to or received by the defendant; but with the agreement and understanding between said defendant and said contracting parties that at a future day there was to be a settlement between them, when the defendant was to receive for said other contracting parties, or pay to said other contracting parties, the difference between the contract price and the market price of said wheat and other grain, pork, and lard, in the city of Chicago, Ill., on the day of the settlement; that the sole and only consideration of said original note was money loaned by the plaintiff to defendant at the time of the making of said wagering and illegal contracts by the defendant, and the sole and only consideration of the note sued upon and mentioned in the complaint is the renewal of said original note as aforesaid, given as evidence of said money loaned; and that, when said money was so loaned, the plaintiff loaned it to the defendant for the purpose of being invested by defendant, as aforesaid, in gambling and wagering contracts so made by defendant as aforesaid, and which purpose, object, and intention was then and there fully known by the plaintiff, and plaintiff was fully informed and told at the time said loan was so made by the defendant that he wanted said money to invest in the city of Chicago, in making of illegal, wagering, and gambling contracts. It is further averred that all of the money so loaned was invested by the defendant in such illegal, wagering, and gambling contracts, and such use of it was agreed to by the plaintiff and the plaintiff knew that said money was so used and knew at the time it was so loaned that it was intended to be so used. And it is further averred that the money was all lost to the defendant, and he received nothing of value for the same or any part thereof. It is further averred that his co-defendant, Ira Jackson, is only surety on the note sued upon, and was only surety on the original note and notes given in renewal thereof, and received no part of the money or any consideration. The appellant Ira Jackson filed a separate answer in one paragraph, alleging suretyship and that the note was executed without consideration. The appellee filed a separate demurrer to each of these paragraphs of answer, which was overruled, and the appellee excepted and assigns such rulings as cross-errors. The appellee then filed a reply in four paragraphs. The...