The Citizens Bank v. Leonhart
| Decision Date | 25 November 1890 |
| Docket Number | 14,407 |
| Citation | 25 N.E. 1099,126 Ind. 206 |
| Parties | The Citizens Bank v. Leonhart |
| Court | Indiana Supreme Court |
From the Jay Circuit Court.
Judgment reversed, with costs.
D. T Taylor, R. H. Hartford, J. B. Jaqua and J. A. Jaqua, for appellant.
C Corwin and J. M. Smith, for appellee.
This is an action on a promissory note governed by the law merchant.
The appellant was the plaintiff in the court below and the appellee the defendant.
The answer contained four paragraphs, the last one being a general denial.
The appellant demurred to the three affirmative paragraphs of answer, and its demurrers being overruled, it reserved exceptions and filed a reply in general denial.
Upon the issues joined the case was submitted to a jury for trial, who returned a general verdict for the appellee and certain interrogatories which had been propounded to them, with their answers thereto.
The appellant moved for judgment upon the answers to the interrogatories notwithstanding the general verdict, but the court overruled its motion, and an exception was reserved.
Then followed a motion for a new trial, which was overruled by the court, and an exception saved, after which judgment was rendered for the appellee.
The only errors which we need consider are those calling in question the rulings of the court in overruling the demurrers to the several paragraphs of answer, overruling the motion for judgment in opposition to the general verdict, and in overruling the motion for a new trial.
And we need not consider all of the reasons assigned in the motion for a new trial, for the reason that some of the questions presented may not arise upon another trial.
The first paragraph of the answer alleges an entire want of consideration for the obligation sued upon; the second paragraph a want of consideration except as to the sum of $ 10, and is pleaded as a partial answer.
Each of these paragraphs alleges notice to the appellant when it purchased the obligation and paid the consideration. These paragraphs are clearly good.
The third paragraph of the answer charges fraud whereby the execution of the note was obtained.
It alleges that the appellee was induced to execute the note in consideration of five bushels of Bohemian oats, and the execution of a certain obligation from the Northwestern Central Ohio Bohemian Oats Company.
There is no allegation of an offer on the part of the appellee to rescind the contract, but as an excuse for not having done so it is alleged that the consideration received was entirely without value. This paragraph of answer is, therefore, unobjectionable notwithstanding the absence of an averment of an offer to rescind the contract. Higham v. Harris, 108 Ind. 246, 8 N.E. 255, and cases cited.
The obligation executed to the appellee by the Bohemian Oats Company reads as follows:
"No. F 21. Organized under the laws of the State of Ohio. Capital stock, $ 10,000; liabilities, $ 20,000. I. D Cranston, President; George F. Brandon, Secretary. Northwestern Central Ohio Bohemian Oats Company, Noble township, Jay county, Ind., do hereby agree to sell ten bushels of oats for Jacob Leonhart, at ten dollars per bushel less 25 per cent. commission, on or before the 1st day of November, 1886.
I. B. McDonald, Sup't.
If, as alleged, the company was insolvent, and Bohemian oats without intrinsic value, then, as is said in Higham v. Harris, supra, no rights were surrendered by the appellant's endorser (the payee of the obligation), and no benefits acquired by the appellee. But, further, if Bohemian oats had no intrinsic value, and this fact was, as is alleged, known to the payee of the note, or to the Bohemian Oats Company, the conditions of the company's obligation could not be performed except by the perpetration of a fraud, such as the appellee alleges was practiced upon him, upon some other innocent person.
As was said by the court in McNamara v. Gargett, 68 Mich. 454, 36 N.W. 218, the performance of the condition in the...
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