Nill v. Comparet

• Decision Date: 08 December 1860
• Parties: Nill and Another v. Comparet
• Court: Indiana Supreme Court

15 Ind. 243

Nill and Another v. Comparet

Supreme Court of Indiana

December 8, 1860

APPEAL from the Allen Common Pleas.

The judgment is affirmed, with costs.

D. H Colerick and J. Colerick, for appellants.

Withers and Morris, for appellee.

OPINION

Worden, J.

Comparet sued Nill and Miller upon a promissory note made by the defendants to one Thomas Meegan, and by the latter indorsed to the plaintiff.

Miller pleaded that "he merely signed the note as the surety of said Nill, and for no other consideration, and that said Nill fully discharged and satisfied the said note before the commencement of this action."

Nill pleaded as follows: "And for further answer the said Nill says, that he is the principal, and said Miller is the surety, in the said note, and that the said Meegan was the treasurer of the city of Fort Wayne for the year 1856, and Nill was elected to said office in 1857, and qualified, and entered upon the duties thereof in the spring of said year. That said Meegan, on the surrender of the said trust to his said successor, represented that he had, as such treasurer, funds in his hands belonging to said city, which he had to pay over to his said successor, to the amount of seven hundred and ----- dollars, deposited in Hamilton's Bank, which Nill receipted for to said Meegan, and the deposit book was the evidence of the deposit. But after the footing in the said book had been made, and Nill had receipted to Meegan for the same, Nill discovered that Meegan had, between the time of the said footing and the said settlement, drawn from said deposit the sum of three hundred and twenty-five dollars; that the said Meegan has never accounted for the said sum or any part of it, and the same is now due and owing said Nill, from the said Meegan, as he, the said Nill, stands charged with the same to said city, on said settlement. That before and at the time of the making of said note, it was agreed, by and between the said Nill and Meegan, that whatever sum the said Meegan had not accounted for to said Nill, on said settlement, should, when ascertained, go in discharge of said note. That the said Nill prays that the said sum may be recouped from the said note, and other relief."

A demurrer was sustained to these pleas, and final judgment rendered for the plaintiff.

The only point raised in this Court, relates to the ruling in sustaining the demurrer. The allegation in the plea of Miller, that he signed the note merely as the surety of Nill, amounts to nothing. The allegation that Nill fully discharged and satisfied the note before the commencement of the action, is the substance of the plea. The averment that the note was "discharged" and "satisfied" does not seem to be equivalent to an averment of payment. The plea would seem to be bad as averring a conclusion of law, instead of setting out the facts from which it was concluded that the note was discharged and satisfied. How, or in what manner, the note was discharged and satisfied, does not appear.

But regarding the plea as equivalent to a plea of payment, it is still fatally defective. To be valid as...