Picken v. Whisler

31 Ind. 402

• Court: Indiana Supreme Court
• Decided: May 15, 1869
• Status: Published

Opinion

Elliott, C. J.

The appellants insist that the -Circuit Court erred in sustaining the demurrer to the .second and third paragraphs of the -answer. The second paragraph is clearly bad. It is averred in the complaint,that the appellants had collected the whole amount due on the Wheatley note. The paragraph admits that Wheatley paid four hundred and seventy-five dollars and sixty-two cents on the note at its maturity, and relies, as a defense to the action, upon a tender of eighty-three dollars before suit, being the ■excess of the sum so paid, over the amount due the appellants from Haden Bowlin; but it does not deny that Wheatley had paid the whole sum due on his note before the commencement of this suit. If the appellants had collected the full .amount of the note on Wheatley before this suit was commenced, the plaintiff below was entitled to recover the amount of the note sued on, and a tender of a less sum could not defeat the action. The paragraph therefore fails to answer the whole cause of action, and the demurrer to it was properly sustained.

Wo think the third paragraph is also bad. It attempts to show .a failure of the consideration, as to a part of the note on Wheatley, by showing that it was given in part consideration for a tract of land formerly owned by Haden Bowlin, the husband of Sophia, and from whom she derived her title, which she conveyed to Wheatley by a deed of wai’ranty, and that a judgment in the District -Court of the United States against Haden Bowlin, whilst he was seized of the land, became a lien thereon; and it is averred, that Wheatley, after the maturity of his note, tendered to the appellants, in full payment thereof, a receipt ©f the clerk of said court for' one hundred and twenty dollars, the balance due on said judgment, and a tax receipt for six dollars and eighteen cents, and paid the residue of Iiis note to them. This was probably intended as an averment that Wheatley paid one hundred and twenty dollars ©n the judgment against Haden Bowlin in the District Court of the Hnited States, to discharge the lien on the land; but We cannot give the language so liberal a construction.

The money may have been paid on the judgment by Ha-den Bowlin, or by C. C. Bowlin, the other judgment debtor, or by Clifton R. Bowlin, tlie principal in the recognizance, and the receipt therefor be tendered by Wheatley to the appellants. The averment of the tender of the receipt amounts to nothing. The appellants did not sue Wheatley on the note, but took upon themselves the burden of showing that, as to the sum of one hundred and twenty dollars, Wheatley had a valid defense, and a suit would, therefore, have been unavailing. The fact that the judgment was a lien on the land, could not of itself have availed Wheatley as a defense, had he been sued on the note; he must have gone further and have shown that he had paid the judgment to protect his title. The paragraph under consideration contains no sufficient averment of such payment by Wheatley, and we think the court did right in sustaining the demurrer.

The defense attempted to be set up was an unnecessary one, as the issue tendered by the complaint was, that the appellants had collected the whole of the note on Wheatley, and there was no complaint of any nogleet in failing to collect it; still, if the paragraph had contained the proper averment of payment by Wheatley of the one hundred and twenty dollars on the judgment against Haden Bowlin, and had thereby shown a valid defense as to that sum, containing as it does the allegation of a tender of the residue of the note in suit, it would have* constituted a good defense to the action.

J. Green, for appellants. J. W. Bobinson, IV. B. Overman, and G. W. Lowley, for appellee.

If the paragraph may he regarded as an argumentative denial that the appellants had collected the whole of the note on Wheatley, still, as another paragraph contains a direct denial of that fact, the third paragraph might have been stricken out on motion; and as the proper result was attained by the demurrer, the judgment would not he reversed for an error in the mode of its accomplishment.

One of the reasons urged for a new trial is, that the finding of the court is contrary to the evidence, and overruling the motion is assigned for error. We think the objection well taken. The case was tried on the appellants denial that they had collected the note on Wheatley. The record contains the evidence, which shows conclusively that the appellants had only received four hundred and seventy-five dollars and sixty-two cents-on the Wheatley note, and not the whole amount, as alleged in the complaint. It further shows that Wheatley paid one hundred and twenty dollars on the judgment in the District Court of the United States, and the further sum of six dollars and eighteen cents for taxes, which were a lien on the land at the time he purchased it. He paid the appellants the residue of the note, four hundred and seventy-five dollars and sixty-two cents, and claimed a set-off for the amounts so paid on the judgment againt Haden Bowlin and for taxes. The finding, from the evidence, of the isues tried, should have been for the appellants, and hence the court erred in refusing a new trial.

The judgment is reversed; with costs, and the cause remanded for a new trial, with leave to both parties to amend their pleadings.