The John C. Groub Co. v. Smith
| Decision Date | 24 November 1903 |
| Docket Number | 4,790 |
| Citation | 68 N.E. 1030,31 Ind.App. 685 |
| Parties | THE JOHN C. GROUB COMPANY v. SMITH |
| Court | Indiana Appellate Court |
From Lawrence Circuit Court; W. H. Martin, Judge.
Action by the John C. Groub Company against Zipporah Smith. From a judgment in favor of defendant, plaintiff appeals.
Affirmed.
T. J Brooks and W. F. Brooks, for appellant.
E. K Dye and W. R. Martin, for appellee.
Appellant brought this action against appellee upon her indorsement to appellant of a promissory note in her favor not payable in bank. The complaint was in two paragraphs: The first alleged that on the 7th of July, 1900, one Eli Kinser, by his promissory note, promised to pay defendant $ 353.28; that before maturity the defendant, for value received, by indorsement in writing, assigned said note to plaintiff; that on the 3d day of May, 1901, plaintiff brought his suit on said note against said Kinser in the circuit court of Lawrence county, being the county wherein said maker then resided; that on the 24th day of September, 1901, said action was tried and determined by said court, and judgment rendered against this plaintiff for costs, and that he take nothing by said suit; that said note had been executed without any consideration, of which fact the plaintiff had no knowledge until said action was tried and determined adversely to it in said court; that defendant was a party to said action, and had due notice thereof and of the defense made in said action; that there is due and unpaid the plaintiff on said note and on said indorsement the sum of $ 200, etc. The second paragraph omits the allegation contained in the first "that said note was executed without any consideration of which plaintiff had no knowledge until said action was tried and determined," and contains the following averment not in the first paragraph: "That said note was fully paid before indorsement to this plaintiff, of which fact plaintiff had no knowledge." Said paragraphs are in other averments identical. Appellee answered in six paragraphs, each addressed separately to each paragraph of the complaint, the first being a general denial; the second that the indorsement was without any consideration whatever; third, payment prior to the bringing of this action; fourth, that at the alleged date of said indorsement, plaintiff was, and still is, a married woman, the wife of Elza Smith; that the note was indorsed by her, and delivered to said plaintiff in payment of a debt of her husband to Smith; that no part of the consideration of said indorsement moved to her, nor did she derive in any way the benefit of any part of the consideration thereof; that said indorsement was solely for the debt of her husband, of which plaintiff had notice at the time of said indorsement. The fifth paragraph, in addition to the averments of the fourth, alleges that said note was not payable in bank; that the same had been fully paid except $ 85; that after the indorsement of the same a suit was brought on said note by plaintiff herein against the maker, Eli Kinser, and that in answer to said complaint the maker pleaded a set-off of $ 85, which set-off was sustained on the trial of said cause; that the existence of said set-off was known to plaintiff at the time of said indorsement, and that the same was accepted by plaintiff with full knowledge of the fact that the maker of the note claimed said set-off. The sixth paragraph alleges payment to plaintiff before the bringing of the suit, excepting $ 85. Appellant replied in two paragraphs, the second being a general denial. To the first appellee successfully demurred. A trial resulted in a finding and judgment in favor of appellee for costs.
The assignment of errors challenges the action of the court in overruling appellant's demurrer to the fourth and fifth paragraphs of answer and sustaining the demurrer to the first paragraph of appellant's reply.
Said first paragraph of reply is as...
To continue reading
Request your trial