Eppinger v. Kendrick

HAYNES, C. This action was brought against M. P. Farnham and J. Kendrick upon two promissory notes, each dated August 19, 1801, payable one day after date, one for $2,000 and the other for $800, to the order of Eppinger & Co., upon which there was claimed to remain unpaid $1,119.04 and interest. Farnham, having been adjudged an insolvent debtor, did not answer, and the action proceeded against Kendrick alone, whose answer consisted of a general denial and a special defense, in which it was alleged that on September 12, 1887, Farnham was indebted to the plaintiffs in the sum of about $6,000, and, at the request of Oscar C. Schultz, manager and agent for said plaintiffs in their mercantile business at Germantown, he executed, with Farnham, a promissory note for $2,000, payable to the order of the plaintiffs one day after date, with interest at the rate of one per cent per month; that he executed the same upon the representation of said Schultz that plaintiffs needed money, that Farnham’s note was not good as collateral security, and that his (Kendrick’s) name would be used for no other purpose than to make the note good as collateral security at the bank; and that the notes in suit were given in renewal thereof, that he did not execute any of the notes at the request of Farnham, and that, as to him, they were without consideration. It was also alleged that, in 1890, Farnham delivered to plaintiffs a quantity of wheat sufficient to have paid said note, with the request that it should be applied thereon, but that Schultz said that he wanted to use the note longer, and he would see Kendrick, and obtain his consent, but did not do so; that he received no consideration for the execution of any of the notes; and that Farnham did not request him to execute them. The jury returned a verdict for the defendant, and this appeal is from the judgment entered thereon, and from an order denying a new trial.

[297]Plaintiffs’ motion for judgment on the pleadings was properly denied. Whether the general denial was sufficient to prevent judgment, in the absence of proof, need not be considered.

Plaintiff also objected to evidence under the special defense, upon the ground that it does not state facts sufficient to constitute a defense. The special defense, so called, really contains two special defenses: (1) That defendant was not Farnham’s surety, but joined in the execution of the notes for the accommodation of the plaintiffs, to enable them to raise money upon them as collateral; and (2) that, if he were liable as surety, the principal maker had put in plaintiffs’ hands sufficient wheat to pay them, and directed that the proceeds be applied upon the original note, and that they did not so apply it. These defenses should have been separately pleaded; but no objection was taken by motion to require them to be separately stated, nor by special demurrer for ambiguity or uncertainty. Though defectively pleaded, the answer stated a defense, and the objection to evidence upon that ground was properly overruled. So, too, the objection that the agency of Schultz for the plaintiffs is not sufficiently alleged cannot be sustained. The answer in that regard is sufficient, as against an objection to evidence, though defectively pleaded, whatever might have been held if it had been specially demurred to.