Kniss v. Holbrook

• Decision Date: 17 June 1896
• Citation: 44 N.E. 563,16 Ind.App. 229
• Parties: KNISS v. HOLBROOK et al.
• Court: Indiana Appellate Court

16 Ind.App. 229

44 N.E. 563

KNISS

v.HOLBROOK et al.¹

Appellate Court of Indiana.

June 17, 1896.

Appeal from circuit court, Noble county; J. W. Adair, Judge.

Action by Lee Holbrook and others against James H. Kniss on a promissory note. From a judgment for plaintiffs, defendant appeals. Affirmed.I. H. G. Zimmerman, for appellant. R. P. Barr, for appellees.

GAVIN, J.

This is an action brought by appellees against appellant upon a promissory note executed to one Brainard, payable to him or bearer at a bank in this state, which was duly assigned to appellees before maturity. Appellant filed an answer of six paragraphs. The third paragraph avers that the consideration of the note was the sale and transfer to appellant and another of a certain patent right, and that there was no clause or words in said note stating that the same was given for a patent right, “by reason of which failure and omission said note was and is invalid and void.” The fourth paragraph was identical in language with this, save that it contained the added averment that appellees had, at the time of their purchase of the note, full knowledge of the facts above set out. A demurrer was sustained to the third paragraph, and overruled to the fourth. Appellees replied by general denial and estoppel arising from their having made the purchase of the note, and paid its face therefor at appellant's request, upon the faith of appellant's statement that it was valid, and that he would pay it. Upon trial there was a general verdict in appellees' favor.

That the facts set forth in the third paragraph of answer constituted a good defense to the complaint is not and cannot be here controverted. The statute (section 8131, Rev. St. 1894; section 6055, Rev. St. 1881) requires that such note shall contain the words “given for a patent right,” while section 8132 (6056) makes it a criminal offense to take or sell such a note without such clause. If the note does not contain the statement, it is unenforceable between the parties; but, if commercial paper, it is valid in the hands of an innocent holder for value. New v. Walker, 108 Ind. 365, 9 N. E. 386. It was not necessary that the answer allege appellees' knowledge. “Where the consideration of the note is illegal, or it is obtained from the maker by fraud, the burden is upon the holder to show that he purchased it in good faith, without notice, and in the usual course of business.” Bank v. Bennett, 8 Ind. App. 679, 36 N. E. 551, and the cases there cited. The court correctly held that appellant could not assert his defense to the note if it was purchased by appellees for a valuable consideration upon the faith of his assurance to them that the note was all right, and that he desired appellees to purchase the same and would pay it. That the maker of a note is ordinarily estopped by such a promise is not disputed. Plummer v. Bank of Mooresville, 90 Ind. 386, and the cases there cited. Appellant, however, insists that this note was void, and that no estoppel can validate a void contract. One serious difficulty with this proposition is that the premise is not well founded. The statute does not in terms declare such contracts void. They are necessarily merely voidable, else they could not be sustained as commercial paper in the hands of innocent holders. The surety obligations of a married woman are by the statute declared void as to her, and therefore the courts declare them incapable of transfer and enforcement as commercial paper. Voreis v. Nussbaum, 131 Ind. 267, 31 N. E. 70. Yet, as therein shown, even married women may be estopped to assert their suretyship. Ward v. Insurance Co., 108 Ind. 301, 9 N. E. 361;Rogers v. Insurance Co., 111 Ind. 343, 12 N. E. 495;Lane v. Schlemmer, 114 Ind. 296, 15 N. E. 454. In New York it is held that an estoppel in pais can be urged to obviate the effect of an act which the statute declares void. Payne v. Burnham, 62 N. Y. 69;Miller v. Zeimer, 111 N. Y. 441, 18 N. E. 716. We are not, however, called upon to go so far, and decide no more than is presented by the facts of this case, and that is that this note was not void, but voidable merely, as is established by the cases above referred to, holding that in the hands of an innocent purchaser it could be enforced as any other commercial paper duly transferred.

Counsel for appellees assert that, while the third paragraph of answer was good, yet there was no harmful error in sustaining the demurrer thereto, because the fourth paragraph, filed with it, and left standing, set up the same matters, and was, in legal effect, the same; and because under this fourth paragraph all the evidence provable under the third was admissible, and the defense advanced by the third paragraph was available under the fourth. This contention must, in our judgment, be sustained. The principle thus declared was announced by the supreme court very early in the history of our state's jurisprudence, and has been many times approved. If it is possible for a long line of decisions of the supreme court to settle a question of practice so that it should be regarded as closed, and no longer open to dispute, the proposition must be deemed settled that, where a demurrer is sustained to an answer, all the averments of which are included in another, under which the facts may be proved, and the defense made available then there is no reversible error in such ruling. As we have seen, the third paragraph did contain a complete defense to the complaint, without the averments of knowledge, while the fourth sets up the same facts, with the additional and unnecessary averment of knowledge. Under the latter paragraph every material fact contained in the former was certainly provable, because it was specifically averred therein, and its proof was absolutely essential to sustain that paragraph. Was not the defense set forth in the third paragraph available under the fourth? If the appellant was, under the latter paragraph, entitled to prove these facts as he most undeniably was, then was he not entitled, upon making the proof, to every benefit or advantage accruing therefrom? According to our holding, the latter paragraph was not, and could not be, any better or stronger than the former. The former set up a complete defense. The other could do no more. It could not, by adding words or additional averments to that which was already a sufficient and complete defense, make of it more than this. The averment of knowledge was wholly unnecessary. Its presence made the pleading no better; its absence would have made it no worse. In legal force and effect, the pleadings were the same. It is elementary law that it is not necessary upon trial that a party shall prove everything he may have alleged in his pleading. Whenever a defendant proves so many of the facts averred in his answer as will constitute in law the defense to the action, he is entitled to recover thereon. In this case, although appellant, in the fourth paragraph, alleged knowledge, he was not, in order to maintain the paragraph upon the trial, required to prove it, because the fact was immaterial, and mere surplusage. “A second rule which governs in the production of evidence is that it is sufficient if the substance of the issue be proved.” 1 Greenl. Ev. § 56. In this case both paragraphs of the answer were good. The third paragraph contained an averment of all the material facts necessary to constitute a defense. The averment of knowledge in the fourth paragraph was matter in excess of what was material, and was, therefore, to that extent, bad in form. The fourth paragraph was sufficient as defense, but was vicious in containing surplusage. 18 Am. & Eng. Enc. Law, p. 558. The allegation of a fact wholly foreign and impertinent to the cause, so that no allegation whatever on the subject was necessary, will be regarded as surplusage. 1 Saund. Pl. & Ev. p. 919; Bliss, Code Pl. § 215. “As to immaterial averments, the rule is that, if the whole of an averment may be struck out without destroying the right of action, it will not be necessary to prove it.” 1 Saund. Pl. & Ev. p. 1091. “No proof is necessary as to such averments or parts of the issue as do not affect the grounds of the defense.” Id. p. 1090; 2 Rice, Ev. 660. See also, Morris v. Stern, 80 Ind. 227, 231;Miller v. White River School Tp., 101 Ind. 503. 505. “All the allegations of fraud and misrepresentation we regard as having been mere surplusage, and as having added nothing either to the force or effect of the paragraph.” Over v. City of Greenfield, 107 Ind. 231, 5 N. E. 872;Byard v. Harkrider, 108 Ind. 376, 379, 9 N. E. 294. “It is true, a plaintiff may allege more facts than are essential to constitute a cause of action, and in such case it is ordinarily held that he need only prove the substance of so many of them as constitute a cause of action, to entitle him to recover, and the balance of them may be regarded as immaterial and surplusage.” Railroad Co. v. McCorkle (Ind. Sup.) 40 N. E. 64 “It is only necessary for the plaintiff to prove so many of the facts alleged by him as amount to or constitute a cause of action.” Long v. Doxey, 50 Ind. 385. “It is sufficient if the substance of the issue is proved.” Bishop v. Redmond, 83 Ind. 157. “It is only necessary for a plaintiff to prove as many of the facts alleged by him as amount to or constitute a cause of action.” Railway Co. v. Valirius, 56 Ind. 511-517. “The appellants were not bound to prove every allegation of their complaint. It was sufficient if they established the substance of the issue.” Owen v. Phillips, 73 Ind. 285-293;Insurance Co. v. Hinesley, 75 Ind. 7;Oil Co. v. Bowker (Ind. Sup.) 40 N. E. 128. Where, as here, the defendant has an answer standing, under which he can prove his defense, if he does so prove it, and the court refuses to give him the benefit of the defense so proven, then he may save his exceptions, and resort to the appellate tribunal for relief. If, upon the...