Ausem v. Byrd

Gookins, J. Assumpsit by Byrd against Johnson and Ausem, on a promissory note for 700 dollars, dated September 2,1850, due five years after date, with interest payable annually, and if not paid when due the principal to become due. The suit was brought in March, and the cause tried in April, 1853. Johnson made default. Ausem pleaded the general issue, and a special plea alleging his readiness to pay the interest, but that the plaintiff fraudulently left the state to prevent a tender of it. A demurrer to this plea was sustained. In this there is no error. If viewed as a plea of tender, or, which is the same in effect, an excuse for not tendering the interest, it is defective for not making proferí of the money in Court. If it is to be regarded as a plea of fraud, it is immaterial whether it was sufficient or not. The facts were admissible in evidence under the general issue. Streeter v. Henley, 1 Ind. R. 401. On the sustaining of the demurrer, the defendant asked [477] leave to file another plea, alleging that the note was obtained from him by the fraudulent connivance of the plaintiff and Johnson, his co-defendant, who represented to him that the note was payable unconditionally five years after date; that he was not a very good' scholar, and that it was written in a hand which he could not readily read, &c. The Court refused permission to file this plea, which is assigned for error. The defendant was not injured by a refusal to permit this plea to be filed, because it was no defence to the action, and would have availed nothing had it been allowed. For aught that appears, he had received, with Johnson, the consideration of the note, and the misrepresentation was of a matter apparent to the senses. The deed of one who can not read will not be avoided for that reason, unless he request that it be read to him. Hollenbeck v. Dewitt, 2 Johns. 404. Had the plea shown that the defendant was a surety, and had the circumstances of fraud been such as could not by reasonable diligence have been detected, it might have been sufficient. Besides, the facts were admissible in evidence under the general issue. The issue was tried by jury. Verdict for the plaintiff for the amount of the note and interest. Motion for a new trial overruled and judgment. An objection is urged to this judgment that the action was premature. It was formerly held, that debt would not lie for money payable in instalments, until the last was due. Co. Litt. 47, 292, b.—3 Co. 22, a. But assumpsit has always been held to lie for the recovery of money payable in instalments, before the whole was due. 1 Chit. Pl. 97. This is not an action, however, for the recovery of an instalment; it is for the recovery of the whole debt, in consequence of the non-payment of an instalment of interest. If A. makes a bill to %. for the payment of ¿£20, viz., ¿£10, &c., and hereby covenants and grants with B. that if he makes default in either of the said payments, he will then pay what of the whole shall be unpaid, after default of the first day, debt lies for the whole. Bac. Ab., tit. Conditions, P. 3, p. 669, note a. J. R. Goffroth, for the appellant. J. R. Slack, for the appellee. It is further insisted, that if the plaintiff was entitled to judgment for the whole, it should have been with leave to take out execution only as the amounts became due. We have no such practice. Such a practice prevails in England, upon obligations like the present, but it is under the statute of 8 and 9 Wm. 3, c. 11, s. 8, which is not in force in this state. A similar practice prevails, we think, in Pennsylvania, and perhaps in other states, under special statutes, but it is a proceeding unknown to the common law. We can not notice the objection taken to the verdict as being against evidence. There is no statement in the bill of exceptions that it contains all the evidence given at the trial. Per Curiam. The judgment is affirmed, with 3 per cent, damages and costs.