Gothrupt v. Williamson

61 Ind. 599

• Court: Indiana Supreme Court
• Decided: May 15, 1878
• Status: Published

Opinion

Worden, J.

Suit by Williamson, against Gothrupt and Henry J. Kline, upon a note executed by the defendants to the plaintiff.

Kline made default, and Gothrupt answered. A demurrer was sustained to the second paragraph of Gothrupt’s answer, and there was final judgment for the plaintiff'.

Gothrupt alone appeals, and has assigned for error the sustaining of the demurrer to the second paragraph of his answer.

The paragraph of answer, as originally filed, to which the demurrer was sustained, alleged, in substance, that Gothrupt signed the note as surety for Kline; that, when he signed it, it was blank as to amount, to whom payable, and the time when, and place where, payable; and that it was afterward filled up by Kline, payable to a different person, and at a different time and place from what had been agreed upon between him and Kline.

The demurrer was correctly sustained to the paragraph. Gothrupt, by leaving the note thus signed in blank with Kline, made the-latter his agent'for the purpose of filling up the blanks, and is bound by the note as thus filled up. Coburn v. Webb, 56 Ind. 96, and cases there cited; Schnewind v. Hacket, 54 Ind. 248.

It is to be gathered from the record originally sent up, and that sent up in response to a certiorari, that, after the demurrer had been sustained to the paragraph of answer, the defendant made an amendment thereto, by charging Williamson, the payee of the note, with notice. But the paragraph as amended was not brought to the attention of the court, nor was it demurred to or passed upon.

The judgment below is affirmed, with costs.