Scribner v. Hanke

Searls, C. This action was brought to recover upon a promissory note made March 16, 1894, by appellant [614]and Edwin Morris, for four hundred and fifty-seven dollars and fifty cents, and payable one day after date to Joseph Huber or order, and indorsed to the respondent herein. Morris made default. Appellant Hanke answered the complaint. The answer is in some respects sui generis.

It admits making the note, denies that there is anything due thereon, etc., and then for a separate answer defendant Hanke avers that on or about the 16th of March, 1894, he took and received from W. D. Demining a bill of sale of certain saloon property in the town of Sanger, etc.; that he paid nothing therefor, and never became the owner thereof; that he took said bill of sale at the request of Huber and at the same time and place with the giving of the note, and that the note was made at the instance and request of Huber; that the note in suit was given apparently to evidence an amount then and prior thereto due and owing from Demming to Huber upon a promissory note, and that it was expressly understood and agreed between all the parties that Hanke would receive the bill of sale and sign the note with Morris for the benefit of Huber.

The answer further avers that he never received any consideration for signing the note, and avers that it was agreed between defendant Hanke and said Huber that said Hanke “ should never be required to pay anything on account of said promissory note,” or of said principal, or the interest or costs, etc.

Defendant further avers that plaintiff took the note after maturity for collection only, and paid no consideration therefor, and had knowledge of all the facts.

The cause was tried by the court without a jury, and upon the written findings filed judgment was entered in favor of plaintiff. Defendant Hanke appeals from the judgment and from an order denying his motion for a new trial.

The first point made by defendant for reversal is that there was no consideration for the note in suit. There was evidence on the part of plaintiff tending to show [615]that one W. D. Demming, at and prior to the date of the note, owned and conducted a saloon at Sanger, and had given his promissory note to Joseph Huber for beer before that time furnished him by Huber. This note was for say four hundred and fifty-seven dollars. Demming sold a half interest in his saloon to one E. Morris.