Frybarger v. Cockefair

17 Ind. 404, 1861 Ind. LEXIS 456

• Court: Indiana Supreme Court
• Decided: December 11, 1861
• Status: Published

Opinion

Perkins, J.

A promissory note was made as follows:

“$1060. Connersville, February 9, 1858.

“Twelve months after date, we promise to pay to the order of W. W. Frybarger, one thousand and sixty dollars, for value received, without relief from valuation or appraisement laws, &c.

(Signed) “Sherman Scoeield,

“Jesse Hatton.”

This indorsement was made thereon:

“I assign the within to E. Goekefair, for value received.

“W. W. Frybarger.”

The above note fell due, February 9, 1859. Goekefair, the assignee, commenced suit upon it, August 22,1859, and obtained judgment on January 21, 1860, in the Fayette Circuit Court. 'The makers had become insolvent, and the money was not made, and now Coekefair, the assignee, sues Frybaryer, the assignor, upon his assignment. In his complaint, he showed neither diligence, nor an excuse for the want of it, and hence the complaint was bad. How far it might be cured by reply, see Reilley v. Rucker, 16 Ind. 303. Frybaryer answered that the assignment of the note by him to Oockefair was without any consideration, paid, or to be paid. To this answer the Court sustained a demurrer. In this the Court erred.,. Appellee’s counsel contend that the error, if it be such, should not reverse the case, because evidence of want of consideration might have been given under the general denial. We think such evidence could not have been given under the general denial. The suit was upon the assignment, a prima facie cause of action. Under the new code, want of consideration for a written instrument, of the class which, prima facie, imports a consideration, must be specially answered.

Jno. S. Reicl, for the appellant. B. F. Olaypool and L. Develin, for the appellee. -

Per Ouriam. — The judgment is reversed, with costs.;, Cause remanded for further proceedings, with leave to amend, &c.