Taylor v. Reger
Citation | 18 Ind.App. 466,48 N.E. 262 |
Parties | TAYLOR et al. v. REGER. |
Decision Date | 17 November 1897 |
Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from circuit court, Madison county; Alfred Ellison, Judge.
Suit by Lorenzo D. Reger against Albert B. Taylor and others. From a judgment for plaintiff, certain defendants appeal. Affirmed.
Henry, McMahan & Van Osdall, for appellants. Walker & Foster, for appellee.
Appellee sued the Pendleton Window-Glass Company, Charles B. Orvis, Charles H. Roach, and the appellants, upon a promissory note, of which the following is a copy: The issues were joined as to all the defendants below except Orvis, who was not served with process, and did not appear. Roach, Taylor, Rogers, and Boston demurred separately to the complaint for want of sufficient facts, which demurrers were overruled. Thereupon they filed a joint answer in two paragraphs: (1) General denial; and (2) setting up affirmative matter,-averring that they signed the note sued on as officers of their co-defendant the Pendleton Window-Glass Company, and not as individuals, and it was so mutually agreed and understood by and between them and the payee thereof, and that he accepted said note on the faith and credit alone of said company. A demurrer to this paragraph of answer was overruled, and a reply in general denial. The appellants and Roach filed a cross complaint against appellee and their co-defendant the glass company, but the record, as it comes to us, does not present any question arising thereunder, and we need not notice it further. The cause was submitted to the court for trial, and the court, on its own motion, called a jury, and submitted to it, by way of interrogatories, certain questions of fact. Upon the answers to the interrogatories, as returned by the jury, and the evidence heard, the court made a general finding against the appellants and all their co-defendants, except Orvis (the glass company suffering a default), and rendered judgment against them for $507.50. Appellants interposed their motion for a new trial, which was overruled, and such ruling is one of the errors assigned in this court; but as the evidence is not in the record, and as the motion for a new trial calls in question the insufficiency of the evidence to support the finding and judgment, and the alleged error of the court in admitting certain evidence over their objections, we cannot consider the motion, and the assignment of error based upon the ruling thereof.
The interrogatories submitted to the jury by the court, to aid it in its determination of the facts, and the answers thereto, were as follows: Each of these interrogatories was signed by the foreman of the jury.
The only error assigned which presents any question for our consideration is the overruling of the appellants' separate demurrers to the complaint. It is insisted that the note sued upon, and made a part of the complaint as an exhibit, purports on its face to be the note of the Pendleton Window-Glass Company, and not the joint note of such company and appellants. They also insist that it is so ambiguous that it would require proof to fix the identity of the parties liable thereon. Counsel say that the general allegation in the complaint that they (meaning all the signers of the note), “by their promissory note, * * * promise to pay,” etc., is not sufficient to make the complaint good, as against the appellants, because such general allegation is inconsistent with the note itself. We cannot agree with this insistence. In our judgment, there is no ambiguity or inconsistency between the allegations of the complaint and the exhibit; and no proof, other than the note itself, would be necessary to fix the identity of the parties. The note, on its face, does not purport to be the separate promise or obligation of the Pendleton Window-Glass Company, but the joint promise or...
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