Matchett v. Anderson Foundry And Machine Works
| Decision Date | 27 May 1902 |
| Docket Number | 3,943 |
| Citation | 64 N.E. 229,29 Ind.App. 207 |
| Parties | MATCHETT v. ANDERSON FOUNDRY AND MACHINE WORKS |
| Court | Indiana Appellate Court |
From Marshall Circuit Court; A. C. Capron, Judge.
Action by James H. Matchett against the makers of certain promissory notes and the Anderson Foundry and Machine Works as indorser. From a judgment in favor of the indorser, plaintiff appeals.
Affirmed.
Charles Kellison, for appellant.
G. M Ballard, E. B. Goodykoonts, B. H. Campbell and Samuel Parker for appellee.
This action was commenced by appellant against the makers of three several promissory notes and against appellee as indorser of the notes sued on. Appellee's demurrer to the complaint was sustained, and, appellant refusing to plead further, judgment was rendered in favor of appellee. The question presented by the action of the trial court in sustaining the demurrer to the complaint is the only question here for consideration.
The complaint alleges that on the 20th day of August, 1890, Joseph W. Frank, William B., and Mary Corl executed and delivered to the Anderson Foundry and Machine Works three several notes:--the first of said notes being for the principal sum of $ 241.40, and payable on July 1, 1891; the second being for the principal sum of $ 246, and payable on January 1, 1892; and the third for the principal sum of $ 248, and payable on July 1, 1892,--each of said notes providing for seven per cent. interest from date and ten per cent. attorney fees, waiving valuation and appraisement laws, and each providing for eight per cent. interest after maturity, and each and all negotiable and payable at the Exchange Bank of Bourbon, and each of said notes waiving presentment for payment, protest, and notice of protest, and non-payment by the drawers and indorsers thereof severally; and each of said notes waiving all defenses on the ground of any extension of the time of their payment that may be given by the holder or holders to the drawers, or the indorsers, or either of them. The notes were in identically the same words, and different only as to the amounts and the time of payment. It is also averred in the complaint: That afterwards, and before the maturity of either of said notes, the appellee the Anderson Foundry and Machine Works for a valuable consideration, indorsed each of said notes by written indorsement thereon, in blank, and sold, transferred, and delivered each and every one of said notes to this appellant; the written indorsement of said Anderson Foundry and Machine Works on each of said notes being as follows: "A. F. & M. Works, per Vanneman." That on December 12, 1896, there was paid on the first of said notes the sum of $ 90.49, and that the interest on each and every one of said notes has been paid to July 1, 1896, and that, with the exception of the payments above stated, the principal and interest of said notes, and each of them is now due and remains wholly unpaid, and that there is now due appellant of principal, interest, and attorney's fees thereon the sum of $ 1,200, all of which remains wholly unpaid.
That one of the makers of said note, the said Mary Corl, is now deceased. Appellant demands judgment against each of the makers of the notes and against appellee in the sum of $ 1,200. The trial court properly sustained the demurrer to the complaint. Each of the notes sued on contained the following stipulation, viz.: "The drawers and indorsers severally waive presentment for payment, protest, and notice of protest, and non-payment of this note, and all defenses on the ground of any extension of the time of its payment that may be given by the holder or holders to them or either of them."
In the case of Glidden v. Henry, 104 Ind. 278, 54 Am. Rep. 316, 1 N.E. 369, the Supreme Court of this State first held that a note which, by its terms, permitted the holder to extend its time of payment, although payable in a bank of this State, was not commercial paper and negotiable as an inland bill of exchange, but was subject to all defenses that the maker or indorser might have against the holder. To the same effect, see, also, Oyler v McMurray, 7 Ind.App. 645, 34 N.E. 1004; Merchants', etc., Bank v. Fraze, 9 Ind.App. 161, 53 Am. St. 341, 36 N.E. 378; Clark v. Trueblood, 16 Ind.App. 98, 44 N.E. 679; Mitchell v. St. Mary, 148 Ind. 111, 47 N.E. 224; Woodbury v. Roberts, 59 Iowa 348, 13...
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