Lowe v. Needham

5 Ind. 140

• Court: Indiana Supreme Court
• Decided: May 27, 1854
• Status: Published

Opinion

Stuart, J.

Assumpsit by Needham against Lowe on a promissory note. The declaration alleges that on the 21st of February, 1852, Loiue made his promissory note to Jesse Hamilton, and that Hamilton then and there indorsed the same to the plaintiff, Lowe. There is the usual allegation of promise, breach, &c. The defendant demurred specially, assigning for cause, 1. That the declaration did not show with sufficient certainty when the indorsement by Hamilton was made. 2. Nor did the plaintiff aver that Lowe had not paid the note to Hamilton before assignment, &c.

There is no foundation for the 'first objection. The date of the assignment is clearly enough stated in the declaration. The allegation, “then and there indorsed,” &c., refers to the date of the note; and is as certain and explicit as though the date had been repeated.

The second objection stands on no better basis. The breach negatives the payment of the money or any part of it. The note being assigned the day it was made, and before it was due, having several months to run, the breach seems sufficient. If Lowe had performed the unusual and very improbable act of paying his note to Hamilton before it was due, and before he had notice of the assignment, such payment would have been a good defence to the action. But in framing his declaration the plaintiff was not bound to anticipate such a contingency. The second degree of certainty is all that is required in the declaration. 1 Chitt. PI. 234. Certainty to a common intent even has been held sufficient in cases like this, by the Courts of Massachusetts and New-York. Coffin v. Coffin, 2 Mass. R. 363.—12 id. 506.—13 id. 284.—2 Johns. Cases 339.

As the defence set up is purely technical, leaving the merits wholly unanswered, it deserves a passing notice. Such defences are not favored either by the legislature or the Courts. In purely money claims, where the only end to be attained is delay, there is great danger of abuse. This it is the duty of the Court to prevent by the use of such means as the legislature may have provided. It will not do to encourage debtors to speculate on the accumulated business and consequent delay of money demands brought here, on technical defences. A new rule, giving such cases precedence in the civil business of the Court, may be deemed expedient. It is hoped that a speedy decision and proper damages will restrain the tendency to such abuse, if it should be found to exist.

F. M. Finch, for the plaintiff. D. Hicks, for the defendant.

"Without intimating that this case was brought here for delay, for we presume it was not, we yet deem it a proper one to indicate the remedy which, on principles of public policy and public good, is so much needed.

Per Curiam.—The judgment is affirmed, with 10 per cent, damages and costs.