Moyer v. Brand
| Decision Date | 25 May 1885 |
| Docket Number | 11,767 |
| Citation | 26 N.E. 125,102 Ind. 301 |
| Parties | Moyer et al. v. Brand |
| Court | Indiana Supreme Court |
Reported at: 102 Ind. 301 at 303.
From the Tippecanoe Circuit Court.
The judgment is reversed as to both of the appellants, at the costs of the appellee, and the cause remanded, with instructions to the court to overrule the demurrer to the first paragraph of Moyer's answer.
R. P Davidson and J. C. Davidson, for appellants.
J. L Miller, J. R. Coffroth, T. A. Stuart, M. Jones and W. F Severson, for appellee.
This is an action by appellee against appellants Moyer and Fretz, upon a joint promissory note which, on its face, purports to have been executed by them as joint makers. Each filed separate answers. One paragraph of Fretz's answer is that the note was executed without any consideration. One paragraph of Moyer's answer was, that as to him, the note is without consideration. To this answer the court below sustained a demurrer. This ruling presents the controlling question in the case. The rule is, that if a separate answer by one of several defendants goes to the merits of the case, and is such that the proof of it will defeat a recovery by the plaintiff, it will enure to the benefit of the other defendants. Sutherlin v. Mullis, 17 Ind. 19; Stapp v. Davis, 78 Ind. 128; Kirkpatrick v. Armstrong, 79 Ind. 384. Appellee, invoking the protection of this rule, contends that though the court may have erred in sustaining the demurrer to the paragraph of Moyer's answer, it is a harmless error, because he could have made the same defence under Fretz's answer. It is true that Fretz's answer goes to the whole cause of action, and, therefore, enured to the benefit of Moyer. Proof of that answer would have relieved him from all liability; but it does not follow from this that the sustaining of the demurrer to his answer is a harmless error. He had the right to answer and defend separately, and hence had the right to answer separately, that as to him the note is without consideration. This is a defence personal to himself, and such as he would not have had the right to make under Fretz's answer.
The defendants might have been unable to make out their defence under that answer, which averred an entire want of consideration for the note, and yet Moyer might have been able to show that as to him, personally, there is an entire want of consideration. Appellee construes the paragraph to mean that no money consideration passed to Moyer, but that construction is not the proper one. The statement in the plea is that as to him, Moyer, the note was executed without any consideration whatever.
We are forced to the conclusion that the court below erred in sustaining the demurrer to the first paragraph of Moyer's answer, and that the error is not a harmless one.
The case is before us without the evidence, upon the special finding of facts. We can not look to this special finding of...
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