Nichols v. Woodruff

Blackford, J. This was an action of assumpsit brought in 1845 by Woodruff against Nichols,. The declaration contains two counts. The first is substantially as follows: That the defendant, on the 1st of January, 1842, at, &c., made his promissory note to the plaintiff, and thereby promised to pay, one year after date, to the plaintiff or order 381 dollars and 50 cents, for value received, with interest, payable on condition that the farm known as the John B. Clark farm, and sold to Jonathan Woodruff at sheriff’s sale, should not be redeemed within one year as was allowed by law in such case. Averment, that the saidffarm was not redeemed within one year from the time of said sale; whereby the defendant became liable to pay to the plaintiff the said sum of money with interest as aforesaid; and being so liable, he, the defendant, in consideration thereof, promised to pay, &c. Breach, that the defendant had not paid, &c. The second count was for land sold and conveyed, money had and received, &c. Pleas, 1. Non assumpsit; 2. That the farm mentioned in the note was redeemed, &c. Verdict for the plaintiff on the first count, and for the defendant on the second. Judgment for the plaintiff on the verdict, and for costs. The first error assigned is, that the first count is bad, because the consideration of the promise is not set out; in other [494] words, because the count is founded on the note, instead of being founded on the special contract. This objection is not tenable. The statute of 1843 enacts, that “all promissory notes, bills, bonds, or other instruments in writing, made and signed by any person or corporation, whereby such person or corporation promises to pay any sum of money, or acknowledges, &c., or for the delivery of any specific article, or to convey any property, or to perform any condition or conditions therein mentioned, shall be and the same are hereby made assignable,” &c. It further enacts, that “any assignee to whom any such note, bill, bond, or other instrument, is made payable by any such indorsement or assignment, may, in his own name, institute and maintain an action and recover thereon against the person or persons or corporation, who shall have made or signed the same.” R. S. 1843, pp. 576, 7. The assignee is thus expressly authorized to sue on any instrument of writing within the statute; and it follows that the payee of such instrument may sue on it also. We consider the note before us to be within the statute. It is, to be sure, payable on a contingency; but as the statute makes no distinction between notes payable on a contingency and those payable at all events, it is not for us to make such distinction. The note being within the statute, it may be the foundation of an action brought by either the payee or indorsee; and as it may be the foundation of an action, the consideration for which it was given need not be averred. Findley v. Cooley, 1 Blackf. 262. We attach no importance to the words “value received,” which are contained in the note. If it were not for the statute, the note could not be sued on as a cause of action, notwithstanding it contains those words. Blanckenhagen v. Blundell, 2 Barn. & Ald. 417. Another ..error assigned is, that the Court refused to give certain instructions to the jury asked for by the-defendant. The first of those instructions is, that if the record of deeds of the county of La Grange, Indiana, shows an entry, made at the proper time, by the recorder of said county, of a redemption of the said John B. Clark farm, that record is conclusive evidence of such redemption, and cannot be rebutted [495] by any other evidence. This instruction was rightly refused. We shall not stop to inquire into this subject particularly. The plaintiff had a right, at all events, to show the entry to be a forgery or otherwise fraudulent. J. B. Howe, for the plaintiff. W. H. Coombs, for the defendant. The other instruction refused is, that if one Hobbs had bought Clark's right to redeem the farm, and had sold the same to the defendant, who executed a receipt for the same as purchaser under the plaintiff, which receipt was in evidence, and a proper record of said redemption had been duly made on the order-book of the Court, and on the record of deeds, according to law, the defendant had made out a good defence. This instruction was also rightly refused. The facts stated in the instruction do not show that the land had been redeemed; but, on the contrary, they show that the right to redeem had been released. It is also said that the judgment for the plaintiff for costs is erroneous. But we must presume, the record giving us no information on the subject, that the taxation of the costs is correct. Per Curiam. The judgment is affirmed with costs.