Owens v. Tague
| Decision Date | 05 January 1892 |
| Docket Number | 359 |
| Citation | 29 N.E. 784,3 Ind.App. 245 |
| Parties | OWENS v. TAGUE ET AL |
| Court | Indiana Appellate Court |
From the Monroe Circuit Court.
Judgment reversed.
R. A Fulk, for appellant.
J. H Louden, W. P. Rogers, J. R. East and R. H. East, for appellees.
This was an action on a joint promissory note, dated May 5th, 1885, brought by the payee, the appellant, against the makers, the appellees, James M. Tague, Jacob Tague, and Joel H. Morgan. Judgment by default, for failure to answer, was taken against James M. Tague. Upon the trial of issues formed by the appellant and Jacob Tague and Joel H. Morgan, there was a finding in favor of these two defendants, on which judgment was rendered for them.
The appellee Morgan answered separately that he signed the note without any consideration.
The appellee Jacob Tague answered separately, admitting that he executed the note when it was originally given, but alleging that he did so as surety for said James M. Tague, and that in 1886, long after the execution of the note, the appellant materially altered the note, without the knowledge or consent of said Jacob, in this, that the appellant and said James, without the knowledge of said Jacob, and with full knowledge that said Jacob had executed the note as surety, merely, for said James, caused said Morgan to sign and execute the note as surety for said James.
The appellant contends that the court erred in overruling his motion to strike out this separate answer of Jacob Tague; but the motion is not made part of the record by bill of exceptions or order of court. Therefore this ruling is not properly presented for our consideration. Section 650, R. S. 1881; Merritt v. Cobb, 17 Ind. 314; Manhattan L. Ins. Co. v. Doll, 80 Ind. 113; Lang v. Clapp, 103 Ind. 17, 2 N.E. 197.
Besides, an erroneous refusal to strike out a pleading is not an available error. Smith v. Martin, 80 Ind. 260; Lake Erie, etc., R. W. Co. v. Kinsey, 87 Ind. 514; Hoke v. Applegate, 92 Ind. 570.
The appellant replied to the separate answer of Jacob Tague: First, by general denial, and, second, that the money loaned for which the note was given was the money of the appellant; that he left it with William H. East to loan, with instructions to loan only on the borrower's giving a good note with at least two solvent sureties; that thereafter said East presented the note to appellant with only one name thereon as surety; that appellant refused to accept the note; that it was then signed by James M. and Jacob Tague; that thereafter said East delivered to appellant the note as sued on, with all the names thereon; that long after it was so delivered said Jacob Tague, having full knowledge of all the facts and circumstances of its execution, and that said Morgan had signed the note as a co-surety, then and there fully ratified the note, and agreed to pay one-half as the surety of said James M. Tague, on the agreement that said Morgan would pay one-half thereof, which he agreed to do.
The appellant replied to the separate answer of the appellee Morgan, first by general denial, and second, that after the execution and delivery of the note by said Morgan, and after full knowledge of all the facts connected therewith, "he fully ratified the same, and agreed to pay to this plaintiff one-half thereof as the surety of James M. Tague, in consideration that Jacob Tague would pay one-half thereof, which he agreed to do."
The court sustained Jacob Tague's demurrer to the second paragraph of the reply to his answer, and Joel H. Morgan's demurrer to the second paragraph of reply to his answer.
The answer of Jacob Tague stated a sufficient defence. Nicholson v. Combs, 90 Ind. 515; Houck v. Graham, 106 Ind. 195, 6 N.E. 594.
The facts that the agent of the payee had special instructions to loan the money for which the note was given only upon a note with two sureties, and that the payee refused to receive the note from his agent when he presented it with only one surety, and that the name of the additional surety was thereafter obtained, would not affect the question as to the liability of the first surety. He could be bound only upon the contract to which he had assented. It is not a case of the delivery of the note by the first surety to his principal. The note was delivered to the agent of the payee and the fact that the note with one surety had been delivered to the agent was communicated to the payee. When it was delivered to the agent for the loaned money, the contract was completely executed so far as the first surety was concerned, and it could not be altered afterward without his...
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