Regensburg v. Notestine

• Decision Date: 31 March 1891
• Citation: 2 Ind.App. 97,27 N.E. 108
• Parties: Regensburg v. Notestine.
• Court: Indiana Appellate Court

2 Ind.App. 97

27 N.E. 108

Regensburg

v.Notestine.¹

Appellate Court of Indiana.

March 31, 1891.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Randall & Vesey, for appellant.

New, J.

On the 5th of December, 1885, the appellee executed his note at 14 months, for $200, to Benjamin Casebeer or bearer, payable at the Hamilton National Bank at Fort Wayne, Ind. After several transfers by indorsement, it was finally, before maturity, assigned by indorsement to the appellant, who brought suit thereon against the appellee. An answer in four paragraphs was filed to the complaint, and demurrers to each of said paragraphs overruled. This ruling of the court is assigned as error. The first paragraph of the answer admits the execution of the note, but says that the payee was the owner of Bohemian oats, and desired to sell him 20 bushels thereof at $10 per bushel; that to induce him to purchase the payee said to him that he had handled and sold said oats, was well acquainted with and knew the character, quality, productiveness, and special value of the same, and then stated and falsely represented to him that said oats would yield from 40 to 50 bushels per acre, was superior in substance and in firmness to other oats, and better for feeding purposes and richer in quality, and were specially valuable for making oat meal and for brewing purposes; that said oats had a market value of two dollars per bushel, and that one bushel was worth three of common oats; that all of said representations were false, and so known to be by said payee at the time of making the same; that defendant was ignorant of the quality of said oats as represented, and had not the means of ascertaining their falsity; that he relied on the truth of said representations, and believing them to be true, and in consideration of their truth, he purchased from the payee 20 bushels of said oats, for the price of $10 per bushel, and executed therefor the note sued on; that said representations were false, in this: that said oats only yielded 12 bushels per acre, and were and are utterly unfit for feeding purposes, for making oat-meal and brewing purposes, and had not then or now any market value for such purposes, and no value at all for said purposes, and are in every way inferior to common oats, and by reason thereof have been wholly lost to the defendant, except said 20 bushels, which was then and is now of the value of two dollars, for which, with costs, he offers to confess judgment, and the consideration of said note has wholly failed; that the plaintiff and the several assignors bought said note with knowledge of its fraudulent procurement. The other paragaphs of the answer, although differing...