Winkelman v. Choteau

Mr. Justice Scholfield delivered the opinion of the Court: This was assumpsit, by appellees against appellant, on the following promissory note, under seal: “Nine months after date, I promise to pay Chouteau & Edwards, or order, the sum of three hundred dollars, with ten per cent interest from date till paid, for value received. This 29th day of March, 1860. William Winkelman, [l. s.] Elizabeth Winkelmah, [l. s.] ” Among other pleas filed by appellant, is the following: “And for further plea in this behalf, the defendant says adió non, because, he says, that the several causes of action in the several counts of declaration are for one and the same thing, to-wit: the promissory note in the first count of said declaration, and for no other cause whatever. Defendant further avers that said note was entered into and executed by defendant without a good or valuable consideration received by this defendant, or otherwise; that said note was executed by this defendant, not to secure any debt due and owing from this defendant or otherwise, but was executed wholly and solely for the purpose of then and there borrowing from said plaintiffs the sum of three hundred dollars, which this defendant never received or otherwise been advanced by said plaintiff said sum of three hundred dollars, or any part thereof, although defendant has, after the execution of said note, often requested said plaintiffs to advance to this defendant the sum of money last aforesaid; but said plaintiffs have wholly failed to so advance the said sum of three hundred dollars, or otherwise; wherefore defendant says, that the consideration of said note has wholly failed, and this defendant is ready to verify, wherefore he prays judgment,” etc. Replication was filed to this plea, traversing the facts pleaded, upon which issue was joined. It is unnecessary to notice the issues- on the other pleas. On the trial, appellant testified that he executed the note for the sole purpose of having it discounted and obtaining a loan of money thereon from the plaintiffs; that he left it with one Herbert, to be used for that purpose; that he never authorized him to use it for any other purpose; that he never received anything thereon, and that he was not indebted to the appellees. One of the appellees, James C. Edwards, testified that the note was presented to him, by Herbert, a few days after its date, with a request that he would have it discounted; that he took the note and tried to get it discounted, but was unable to do so ; that, two or three days after that, Herbert came to him with a gentleman represented to be the appellant; that he informed them he had failed to get the note discounted, but that he would try it again; that about half an hour after Herbert and the gentleman with him left, Herbert returned again, and told witness to put the note away and collect it if he could, and give the firm of which Herbert was a member credit therefor. It appears that appellant was indebted to Herbert when the note was given, but he positively denies that this note was given on account of that indebtedness, and appellees do not pretend he ever owed them anything. Appellees do not occupy the position of assignees in good faith, without notice; they are simply payees, and if the evidence in the record can be trusted, there was a failure of the consideration for which the note was executed. "We think the defense set up in the plea is proved, and the judgment must, accordingly, be reversed, and the cause remanded. Judgment reversed.