Puett v. State Bank

4 Ind. 45, 1853 Ind. LEXIS 3

• Court: Indiana Supreme Court
• Decided: May 23, 1853
• Status: Published

Opinion

Stuart, J.

Debt on a promissory note. Five pleas filed, leading to issues of law and fact. Trial by the Court, and judgment for the plaintiff below.

The third and fifth pleas alone are before us on demurrer. The third plea professes to answer the special count on the note, but is an answer to only a part of that count. This Court has repeatedly decided such plea bad on general demurrer.

Note.—Judge Ronche, owing to indisposition, was absent during the first five days of this terra.

J. A. Wright and E. W. McGaughey, for the plaintiffs. S. B. Gookins, for the defendant.

The fifth plea sets up in avoidance as to part, &c., that the defendant in error agreed to assign Puett a judgment against Briggs and others, of the amount which the plea professes to answer; that this agreement was, as to so much, &c., the consideration of the note sued on; that the judgment was assigned, &c., but “ without recourse” on the assignor; and so the consideration as to so much, &c., had failed. We think the demurrer to this plea well taken. To sustain the plea would be giving Puett the assigned judgment for nothing. If Puett intended to make the mode of assignment available as a defence, he should have placed or offered to place the parties in the position they occupied prior to the assignment. By retaining the judgment he accepted the assignment, and fixed his liability to pay for it.

Counsel contend that the assignment "without recourse” was not objectionable, because, whatever words are used, that is the legal effect, the statute making no provision for recourse over on the assignor. But as this question does not arise in the record, we give no opinion.

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs.