Shank v. Fleming

• Decision Date: 02 June 1857
• Citation: 9 Ind. 180
• Parties: Shank v. Fleming
• Court: Indiana Supreme Court

9 Ind. 180

Shank v. Fleming

Supreme Court of Indiana

June 2, 1857

From the Delaware Circuit Court.

The judgment is reversed with costs. Cause remanded.

Walter March, for appellant.

Joseph S. Buckles, for appellee.

OPINION

Davison J.

Fleming, the plaintiff below, sued Shank, who was the defendant, upon a promissory note executed to one Norval Fleming, and by him assigned to the plaintiff. The note is as follows:

"On the 25th day of December, 1853, for value received, I promise to pay Norval Fleming, eighty dollars, given for the west half of the north-east quarter of section number 32, township 21, range 9. This 23d day of September, 1851."

[Signed,] "Abraham Shank."

The defendant's answer admits the execution of the note and the assignment; but alleges, 1. That the note is without consideration. 2. That it was assigned to the plaintiff without any consideration whatever; that he has no title to or interest in, the note; and that Norval Fleming is the real party in interest, and the person in whose name the action should have been instituted. 3. That the sole consideration for which the note was given, was the sale of the west half of the north-east quarter of section number 32, township 21, range 9, by Norval Fleming to the defendant--to which the said Norval hath not, nor had he ever, any title whatever. 4. That the land above described, and for which the note was given, was purchased by Norval Fleming of one Henry Shank, who purchased it of one Jacob Kline, who still holds a lien thereon for 100 dollars of the purchase-money, due to him from Shank, and for the recovery of which he, Kline, had instituted a suit, which is now pending, whereby he seeks to enforce said lien, and prays judgment for the sale of the land. Wherefore, the defendant submits that the present suit be dismissed, or that it be stayed until the action instituted by Kline is finally determined.

In reply to the first paragraph, the defendant alleges that the note was given for a valuable consideration. To the second, so far as it avers the assignment to have been made without consideration, he replied that the consideration upon which the note was assigned was valid and valuable. And in reply to the third paragraph, he admits that the note was given for the west half of the north-east quarter of section number 32, township 21, range 9; but avers that he had title to the land.

A demurrer was sustained to the fourth paragraph, and also to that part of the second to which there was no reply.

The cause was submitted to the Court for trial, and thereupon the defendant moved for the opening and close; but his motion was overruled, and the plaintiff allowed to open and close the case.

The Court found for the plaintiff, and over a motion for a new trial, there was judgment, etc.

There is a bill of exceptions which says, that, after the defendant introduced his evidence, the plaintiff asked leave to strike out his reply to the third paragraph of the answer, and instead thereof to file the following, viz:

"And for reply, * * the plaintiff avers that the note sued on was written by the defendant himself, who therein, by mistake or fraud, described the land as the 'west half of the north-east quarter of section number 32, township 21, range 9,'--when in truth, * * the consideration of the note was the sale of the 'west half of the north-west quarter of section number 32, township number 21 north, of range 9.' That for the last described tract, the said Norval Fleming had a valid title, which he conveyed to the defendant, and said conveyance constitutes the consideration of the note."

The Court, though the defendant objected, allowed the plaintiff to file his amended reply.

For the reversal of the judgment, it is contended--

1. That the defendant was entitled to the opening and close of the case.

The code provides that the...