McKinley v. First Nat. Bank of Crawfordsville

• Decision Date: 23 April 1889
• Citation: 21 N.E. 36,118 Ind. 375
• Parties: McKinley v. First Nat. Bank of Crawfordsville.
• Court: Indiana Supreme Court

118 Ind. 375

21 N.E. 36

McKinley

v.First Nat. Bank of Crawfordsville.

Supreme Court of Indiana.

April 23, 1889.

Elliott, C. J., dissenting.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.

Wright & Seller, for appellant. Paul & Humphries and Wm. M. Reeves, for appellee.

OLDS, J.

This is an action on a promissory note executed by the appellant and one Burkholder to the appellee for $7,150, dated December 27, 1882, with 8 per cent. interest and attorney's fees. The complaint is in the usual form. The appellant answered in two paragraphs. The first paragraph alleges that prior to the 5th day of August, 1882, the defendant and Burkholder were in partnership in the lumber business, and that they (said defendant and Burkholder) were indebted to the plaintiff (the appellee) in the amount of the note sued upon, evidenced by several notes; that upon said last-named date said defendant sold his interest in said lumber business to his partner, Burkholder, and Burkholder executed to him his note in payment of such interest, in the sum of $3,915; that plaintiff was desirous of collecting the amount owed by said Burkholder & McKinley to the plaintiff, and a contract was entered into between all of said parties by which it was agreed that Burkholder should make sale of the stock of lumber and timber on hand, and the said plaintiff should make all collections for such sales, and should apply the amount so collected as follows: One-fifth to the payment of said $3,915 note, due McKinley, and four-fifths of the amount so collected to the indebtedness due the plaintiff from the firm of Burkholder & McKinley; that the note sued upon was given in renewal of the notes thus held by the plaintiff against Burkholder & McKinley, and the consideration for said notes held against the firm of Burkholder & McKinley August 5, 1882, is the same consideration as the consideration for the note sued upon; that said Burkholder made sale of said lumber and timber on hand, and the plaintiff collected the money on such sales, amounting to $17,000, four-fifths of which amount, if applied to the payment of said notes and indebtedness, as agreed upon, would have more than paid and satisfied the same. The second paragraph alleges substantially the same facts, and that all except $2,000 of said indebtedness of Burkholder & McKinley had been paid prior to the execution of the note sued on; that defendant signed the note without reading it, supposing and believing it to be only for the balance due on said indebtedness; and that there was no consideration for the note except the sum of $2,000, which had been fully paid. Plaintiff replied to the answers by denial. Trial by jury, resulting in a general verdict for defendant, and answers to special interrogatories; motion for judgment for the plaintiff on the interrogatories and answers, notwithstanding the general verdict; motion sustained, and judgment for the plaintiff. After verdict, and before judgment, defendant moved the court to correct the answer to interrogatory No. 24 by striking out the word “Yes” and inserting in lieu the word “No,” for the reason that the jury agreed to...