Ward v. Bennett

20 Ind. 440

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Davison, J.

The appellees, who were the plaintiffs, sued Thomas B. Ward, the maker, and William P. Ward, the indorser, of a promissory note for the payment of 155 dollars and 40 cents. The note and indorsement thereon are as follow's :

“ Lafayette, September 1, 1858.

“Four months after date, I promise to pay to the order of William L. Ward 155 dollars and 40 cents, payable at the Reynolds Bank, Lafayette, Indiana, with interest, and exchange on Pittsburg, value received, without any relief whatever from the appraisement laws.

“Thomas B. Ward.”

Indorsed — “-Pay Graff, Bennett § Co., or order.”

“ William L. Ward.”

The defendants answered the complaint by two paragraphs:

• 1. That the note w'as given by Thomas B. Ward, as principal, and that William L. Ward was a mere accommodation indorser, of which the plaintiffs had full notice when they took the note; that they, the plaintiffs, were in reality the original payees; that the note is not governed by the law-merchant, and that due diligence has not been used to collect the same from Thomas B. Ward.

John A. Stein, for the appellants. George Gardner, for the appellees.

2. That the averments in the first paragraph are true; that the plaintiffs owe Thomas B. Ward 200 dollars, which is here pleaded by way of set-off, and they adopt the averments of the first paragraph in this.

To these paragraphs demurrers were sustained, and the defendants excepted. Final judgment was given for the plaintiffs.

The errors assigned relate, alone, to the action of the Court upon the demurrers. The first paragraph evidently constitutes no defence as to Thomas B. Ward, the maker of the note, and must, therefore, be held insufficient as to both defendants, because the rule is well settled that where “ two defendants join in a plea which is sufficient for one, but not for the other, the plea is bad to both.” 1 Chitty Pl. p. 557; Stephen on Pl. p. 407; 3 Blackf. 421, 429; 9 Ind. 394, 397. The second paragraph is also defective, because of uncertainty. It alleges simply “ that the plaintiffs owe Thomas B. Ward 200 dollars, without setting forth the particulars of the demand sought to be set-off. Fugit v. Fwing, 9 Ind. 347, decides that “ where a set-off is pleaded the character of the indebtedness proposed to be set-off must be shown.” This authority is peculiarly in point, and decisive against the validity of the defence in question.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.