Mewherter v. Price

• Decision Date: 03 December 1858
• Citation: 11 Ind. 165
• Parties: Mewherter v. Price and Another
• Court: Indiana Supreme Court

11 Ind. 165

Mewherter v. Price and Another

Supreme Court of Indiana

December 3, 1858

From the Bartholomew Circuit Court.

The judgment is affirmed, with 1 per cent. damages and costs.

W Herod and S. Stansifer, for appellant.

C. E Walker and J. W. Chapman, for appellees.

OPINION

Davison J.

This was an action by the appellees, who were the plaintiffs, against Mewherter. The following is the case made by the complaint: On the 4th of December, 1854, the defendant entered into a contract in writing with Morgan and Parkhurst, signed by the parties, by which he agreed to deliver to them one thousand corn-fatted hogs, to average two hundred pounds net, at any pork-packing house in Madison that they might designate, between the 1st and the 20th of December, 1855, for which they were to pay 4 dollars 25 cents, per one hundred pounds net; 1,000 dollars to be paid on the 1st of June, 1855, and 1,000 dollars on the 1st of October in the same year, and the balance on the delivery of the hogs; which several sums, they, Morgan and Parkhurst, paid to the defendant, as stipulated, &c. And on the 20th of December, 1854, the defendant and one McEwen entered into a written contract, signed by them respectively, whereby the defendant agreed to deliver to McEwen, at any pork-packing house designated by him in Madison, between the 1st and the 25th of December, 1855, one thousand merchantable hogs, to average two hundred pounds net, at and for the price of 4 dollars 25 cents, per one hundred pounds net, to be paid for on delivery; and McEwen, as stipulated in the contract, paid an advance thereon of 2,000 dollars.

After this, in September, 1855, McEwen, by indorsement, assigned his contract with defendant to the plaintiffs; and afterwards in October in the same year, Morgan and Parkhurst, by indorsement, assigned to the plaintiffs the contract by them entered into with the defendant.

It is averred that for these assignments the plaintiffs paid 4,000 dollars; that they gave the defendant due notice that they held the contracts, designated their own pork-packing house in Madison as the place where sad hogs should be delivered, and so notified the defendant; but that he failed to deliver the hogs, or any part of them, though the plaintiffs were, at all times, ready to pay for the hogs on delivery, &c.

The defendant demurred, upon the alleged ground that the complaint does not state facts sufficient to constitute a cause of action; but his demurrer was overruled.

Are the contracts set forth in the complaint assignable, so as to authorize the assignees to sue in their own names? This is the first question raised by the demurrer. We have a statute entitled "An act concerning promissory notes and bills of exchange," which provides--

"That all promissory notes, bills of exchange, or other instruments of writing, signed by any person who promises to pay money, or acknowledges money to be due, or for the delivery of any specific article, or to convey property, or perform any stipulation therein mentioned, shall be negotiable by indorsement thereon, &c.

"The assignee of any such instrument may, in his own name, recover against the person who made the same" ^[1].

The appellant insists that under the act to which we have referred, the assignments cannot be sustained, because promissory notes and bills of exchange are alone embraced in the title of that act; that its provisions, so far as they relate to "other instruments of...