McWhorter v. Norris

• Decision Date: 28 September 1893
• Docket Number: 871
• Citation: McWhorter v. Norris, 9 Ind. App. 490, 34 N. E. 854 (Ind. App. 1893)
• Parties: MCWHORTER v. NORRIS
• Court: Indiana Appellate Court

34 N.E. 854

9 Ind.App. 490

MCWHORTER v. NORRIS

No. 871

Court of Appeals of Indiana

September 28, 1893

Reported at: 9 Ind.App. 490 at 497.

From the Noble Circuit Court.

Judgment affirmed, with five per cent. damages.

H. G Zimmerman and R. W. McBride, for appellant.

L. W Walker, for appellee.

OPINION

ROSS, J.

The judgment appealed from was rendered in an action brought by the appellee to recover upon the following written obligation:

"$ 100. WAWAKA, IND., July 13, 1874.

"One year after date, I promise to pay to John McWhorter, or order, ten per cent. interest on three hundred dollars, during his and his wife's lifetime, per year, value received, without relief whatever from valuation and appraisement laws, with ten per centum interest and ten per centum additional for attorney's fees, if collected by suit or legal process.

"AARON MCWHORTER."

The complaint is in two paragraphs, to each of which a demurrer for want of facts was filed and overruled.

The complaint is as follows:

"Plaintiff complains of defendant, and says that on the 13th day of July, 1874, said defendant, by his note, a copy of which is filed herewith, marked 'exhibit A,' and made a part hereof, promised to pay John McWhorter ten per cent. interest on three hundred dollars, during his and his wife's lifetime, per year, payable annually, with ten per cent. interest thereon, and ten per cent. attorney's fees; that at the date of the execution of said note, said John McWhorter gave and delivered said note to Charlotte McWhorter, his wife, as her property for whose benefit said note was given; that said John McWhorter departed this life on the 15th day of August, 1884; that by the terms of his said will he devised all of his property to his said wife, Charlotte; and that by decree and order of this court all of his said property rights and credits were vested in his said widow, Charlotte McWhorter, the same amounting to less than five hundred dollars; that said note was, by said John McWhorter, transferred to said Charlotte by delivery simply; that after said order of said court vesting said property in said Charlotte, to wit, on the day of May, 1888, said Charlotte sold, assigned and transferred said note to this plaintiff for a valuable consideration, by her written indorsement thereon; that said note is long past due and wholly unpaid; and plaintiff further says that said Charlotte is still living. Wherefore, plaintiff demands judgment for one thousand dollars."

Second paragraph. "For a second and further cause of action, plaintiff complains of defendant and says that defendant, by his note, a copy of which is herewith filed, marked 'exhibit A,' and made a part hereof, promised to pay John McWhorter, or order, ten per cent. interest on three hundred dollars during his and his wife's natural lifetime, payable yearly, with ten per cent. interest and ten per cent. attorney's fees; that said John McWhorter departed this life on August 15, 1884; that by the terms of his will he gave and devised all of his property to his said wife, Charlotte; plaintiff further avers that this court, by decree, on the day of , 1885, vested all of the property rights and credits of said John McWhorter, deceased, in his widow, Charlotte, who was the sole owner of said note, with all of the rights of said John; that said Charlotte McWhorter, by her written indorsement, assigned and transferred said note to this plaintiff; plaintiff further says that said Charlotte is still living; that said note is due and wholly unpaid. Wherefore," etc.

The appellant, preceding the filing of the demurrer to the first paragraph, filed a motion to strike out parts thereof, which was overruled by the court. There is no available error in overruling a motion to strike out parts of a pleading. Owens v. Tague, 3 Ind.App. 245, 29 N.E. 784; Walker v. Larkin, 127 Ind. 100, 26 N.E. 684; Lewis v. Godman, 129 Ind. 359, 27 N.E. 563, and cases cited; Holland v. Holland, 131 Ind. 196, 30 N.E. 1075, and cases cited.

It is earnestly insisted that the instrument sued on is not a promissory note, hence not negotiable.

Section 5501, R. S. 1881, provides that "All promissory notes, bills of exchange, bonds, and other instruments in writing, signed by any person who promises to pay money, or acknowledges money to be due, or for the delivery of a specific article, or to convey property, or to perform any stipulation therein mentioned, shall be negotiable by indorsement thereon, so as to vest the property thereof in each indorsee successively."

The obligation sued on, whether a promissory note or simply an obligation to pay money, was clearly assignable under this section of the statute.

The contention of counsel is that the obligation itself does not show an agreement to pay a fixed sum as principal; and that without a principal to become due and payable, there is nothing for the use of which interest is to be paid. In this contention, we can not concur.

True, the obligation does not provide for the payment of a sum as a principal, but the principal is designated as the sum upon which interest is to be calculated, namely, three hundred dollars.

It is contended by appellant, that both paragraphs of the complaint are insufficient, in this, that they are "so ambiguous that no issue thereon can be framed which will present, in an intelligent form, the issues for trial, without perplexity and confusion."

The basis of counsel's argument being that the facts alleged with reference to the ownership are not only so...