Wipperman v. Hardy
| Decision Date | 09 March 1897 |
| Docket Number | 1,723 |
| Citation | 46 N.E. 537,17 Ind.App. 142 |
| Parties | WIPPERMAN v. HARDY |
| Court | Indiana Appellate Court |
From the Carroll Circuit Court.
Affirmed.
McConnell & Jenkins, L. B. Sims and Pollard & Pollard, for appellant.
John H Gould and Nelson & Myers, for appellee.
The appellant, the payee of the promissory note upon which this action was begun, filed his complaint in the lower court against appellee, who was the alleged surety upon the said note.
The complaint in this cause avers that the note in suit was executed by Hugh Hardy, as principal, and David J. Hardy, as surety; that Hugh Hardy, the principal, died before this action was begun; that at the time of his death he was wholly and totally insolvent and left no property or estate, and that long before the death of said Hugh Hardy he was openly and notoriously insolvent, and this action is prosecuted against David J. Hardy, the surety, alone.
The first paragraph of appellee's answer is a general denial.
The second is a plea of payment.
The third alleges a total want of consideration.
The fourth admits the execution of the note, and says that appellee executed the same as surety for Hugh Hardy, now deceased, but he alleges an agreement in substance as follows: That before the commencement of this suit, he, the appellant, procured one David H. Hardy to execute his, David H. Hardy's two promissory notes to the appellant, Henry Wipperman, which said promissory notes were by the appellant accepted in full payment of the note in suit, and other notes on which appellee was surety for Hugh Hardy; that instead of delivering up the note so paid him, the appellant retained the same without the knowledge or consent of the appellee and another note of the said Hugh Hardy on which this appellee was not surety was given up by the appellant to said David H. Hardy, and the one in suit was retained by the appellant; that said paragraph of answer stated the agreement in another form as follows: That the agreement between the appellant and the appellee was, that if appellee would procure David H. Hardy to execute his two certain promissory notes for an amount equal to the amount due upon the notes on which he was security for Hugh Hardy, that appellant would accept them in payment and discharge of this note in suit, together with the other note that appellant, Wipperman, then held against him. That he did procure David H. Hardy to execute his two certain promissory notes to the appellant for the full amount that the appellee was indebted to him as surety for Hugh Hardy; but that appellant, Wipperman, neglected and refused to surrender the note in suit, but retains the same, and also retains the notes executed to him by said David H. Hardy, and upon these facts appellee claims the appellant should not recover in this suit.
The substance of the fifth paragraph of appellee's answer is, that on and prior to the 30th day of April, 1892, appellee was indebted to appellant in the sum of $ 1,500.00 and accrued interest thereon, which said indebtedness was evidenced by two promissory notes, executed by said Hugh Hardy as principal, and appellee as surety; one dated November 3, 1877, for $ 1,000.00, and the other dated December 10, 1877, for $ 500.00; that said notes remain unpaid, except the interest due thereon to December 17, 1885; that prior to April 30, 1892, appellee entered into a contract with appellant, that if appellee would procure one David H. Hardy to execute to appellant his two certain promissory notes for the amount due upon the aforesaid notes, executed by Hugh Hardy as principal and appellee as his surety, the appellant, Wipperman, would accept the same, and release the appellee from all liability on said notes; that, pursuant to said agreement, said David H. Hardy executed his two promissory notes to appellee for the full amount due upon said notes then held by Wipperman against Hugh Hardy and this defendant; and that said Wipperman accepted said notes, but neglected to deliver to said David H. Hardy both of the notes on which appellee was surety, but retained, in violation of said contract, the note now in suit.
The sixth paragraph of answer alleges substantially, that the appellant, Wipperman, prior to April 30, 1892, held the two notes described in the fifth paragraph of answer, supra, executed by Hugh Hardy, and on which appellee had written his name as surety; that prior to said date a controversy arose between the appellant and appellee as to whether appellee was liable on said notes as surety for Hugh Hardy; that to save litigation and to secure his release from liability upon said notes, if any there was, it was agreed between appellant and appellee that if appellee would procure David H. Hardy, the son of Hugh Hardy, to execute his promissory notes for the amount due upon said notes of Hugh Hardy, and appellee, given to appellant in 1877, that appellant would accept the same and release appellee from all liability upon said notes. That in accordance with the terms of said agreement the appellee procured David H. Hardy to execute to the appellant his two certain promissory notes for the full amount due upon the aforesaid Hugh Hardy notes.
To these several answers the appellant filed two paragraphs of reply. The first one being a general denial, and to the second a demurrer was filed and sustained by the court.
The cause being at issue, was submitted to a jury and a special verdict returned. The verdict finds, in substance, the following facts:
First. That on the 23d day of November, 1877, one Hugh Hardy borrowed and received from appellant $ 1,000.00, and in consideration therefor, on the same day, the said Hugh Hardy executed and delivered to appellant his promissory note therefor, but that at said time the name of appellee was not on said note.
Second. That on the 10th day of December, 1877, Hugh Hardy borrowed and received from the appellant $ 500.00, and in consideration therefor, on the same day, executed and delivered to appellant his promissory note, but at the time said note was so executed by Hugh Hardy the name of appellee was not on said note.
Third. That no part of the consideration of either of said notes ever passed to the benefit of appellee.
Fourth. That appellee never received from any one any part of the proceeds of either of said notes.
Fifth. That in January, 1878, while appellee was at the home of appellant, at the request of appellant, appellee signed his name to both of the above described notes.
Sixth. That no consideration passed from appellant to appellee, nor to said Hugh Hardy [the principal], for the signing of said notes, or either of them, by appellee.
Seventh. That said Hugh Hardy never at any time requested appellee to sign either of said notes.
Eighth. That appellee never promised or agreed with Hugh Hardy at any time to sign either of said notes.
Tenth. That at the time said Hugh Hardy signed said notes he was worth, in real and personal property, the sum of $ 18,000.00.
Eleventh. That prior to April 30, 1892, a controversy arose between the appellant and appellee as to whether or not appellee was liable upon said notes. That appellant was at the time threatening to bring suit on said notes, which included the one in controversy. That appellant and appellee, for the purpose of avoiding litigation, agreed that if appellee would procure one David H. Hardy [who was a son of Hugh Hardy, the principal on said notes] to sign and deliver his two notes, aggregating the sum of $ 2,334.32, to appellant, he, appellant, would accept said notes of David H. Hardy and release appellee from any and all liability, real or pretended, by reason of appellee's signing said notes. That appellee did, on and prior to April 30, 1892, induce and procure said David H. Hardy to sign and deliver to the appellant his two promissory notes for the aggregate sum of $ 2,334.32, but appellant retained in his possession the note in suit.
Twelfth. That on the 29th day of December, 1885, Hugh Hardy [who was the principal on the note in suit] had executed to appellant his certain note for $ 563.00, which was signed by said Hugh Hardy alone. That appellant had said last mentioned note with him at the office of his attorney, on the 30th day of April, 1892, and delivered the same to David H. Hardy, instead of the note in suit, which appellant retained without the knowledge or consent of the appellee.
Thirteenth and Fourteenth. That the following endorsement appears on the note in suit,...
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