Windle v. Canaday

21 Ind. 248

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

Opinion

Hanna, J.

Suit on a note. Answer, among other things, that the note was given in part consideration for the purchase of a patent right, &e., concerning the utility and value of which certain representations were made, which are specifically set forth, and alleged to have been false and fraudulent. Reply to that part of the answer above noticed that, before the purchase of the note by the plaintiffs, said defendants stated to one Cook, he being at that time the owner of the note, that it was valid and he had no defence to make to the same, &c., which statement said Cook repeated to the plaintiffs at and before they purchased.

The complaint shows the note was payable to one Newbrough, who assigned it to Cook, and he to the plaintiffs.

A demurrer to the reply was overruled, which presents the only point in the case. The ruling was erroneous. The statement made by Windle to Cook, after the latter had become the owner of the note, could not have influenced him in purchasing the same, and therefore there was nothing to rest an estoppel upon. As the maker made no statement to the plaintiffs calculated to influence them in acquiring title to the note, he is not estopped by this statement to a third person from setting up a defenee. Jones v. Dorr, 19 Ind. 884. If Cook had been in a position to enforce the collection of the note, because of an estoppel based upon representations made by the maker before Cook became the holder thereof, we do not decide that he could not have transferred a clear title to an assignee; but that point is not before us. See Ray v. McMurtry, 20 Ind. 308.

James Brown, for the appellant. Wm. F. Walker, for the appellees.

The demurrer should have been sustained.

Per Curiam. — The judgment is reversed, with costs. Cause remanded.