Ellis v. Gregory

70 Ind. 140

• Court: Indiana Supreme Court
• Decided: May 15, 1880
• Status: Published

Opinion

Worden, J.

— Complaint by the appellant, against the appellees, in three paragraphs. The first and third paragraphs were much alike, and alleged that the defendants were partners ; that they were desirous of raising money for their partnership business; that for this purpose the defendant Francis B. Gregory executed his note payable to the plaintiff at the Muncie National Bank, Indiana, for the sum of $900 ; that, for the purpose - of accommodation, the plaintiff endorsed the note, and the defendants negotiated the same to said Bank and received .the proceeds and used the same in their partnership business; that the note, when it became due, was dishonored by the maker, and the plaintiff has been compelled to pay the same as such accommodation endorser.

The second paragraph alleged that the defendants were partners in business, under the firm name and style of F. B. Gregory; that the defendants, by their said firm name, executed their promissory note payable to the plaintiff at the Muncie National Bank, Indiana, for the sum of $900; that the plaintiff, for the accommodation of the defendants, endorsed said note, and the defendants negotiated the same at the bank and received the proceeds thereof ; that, when the note became due, it was dishonored by the defendants, and the plaintiff has been compelled to pay the same as such endorser.

Francis B. Gregory made default. John answered, first, by general denial; second, as follows :

“ Further answering, he says the several notes mentioned in the plaintiff’s complaint, in each paragraph thereof, are not his deeds or notes.” This paragraph was duly verified.

The plaintiff demurred to the second paragraph of answer, for want of sufficient facts, but the demurrer was overruled and exception taken. Issue, trial, verdict and judgment for the defendant John Gregory.

Error is assigned upon the ruling on the demurrer to the second paragraph of the answer of John Gregory.

The second paragraph of the answer, it seems to us, was good only as to the second paragraph of the complaint.

The second paragraph of the complaint was the only one that"sought to charge the defendant John Gregory as maker of the note.. The first and third paragraphs conceded that John Gregory did not execute the notes mentioned therein, but sought to hold him on the facts therein stated. No objection is made to the sufficiency of the first and third paragraphs of complaint; and, if they are good, it is no answer to them, so far as John Gregory is concerned, to say that the notes mentioned are not his notes, inasmuch as he is not charged in those paragraphs as the maker thereof.

The paragraph of answer was pleaded to the entire complaint, and, as it was good only to one paragraph thereof, the demurrer should have been sustained.

The judgment below is reversed, with costs, and the ' cause remanded for further proceedings in accordance with this opinion.