Piersol v. Grimes

Frazer, J. Piersol sued Grimes upon the assignment of a promissory note, alleging the assignment to have been made by indorsement to Barton (who is made a party to answer to his interest), and that Barton afterwards transferred the note and . indorsement by mere delivery to the plaintiff, and that some one, without the knowledge or consent of the 'plaintiff, had erased the name of Barton in the assignment and inserted the name of the plaintiff.' The complaint also alleged facts showing due diligence in prosecuting the maker of the note to insolvency,. &e. A demurrer to the complaint was sustained below,’ and error- is assigned upon that ruling. The opinion of this court in this case when formerly here (25 Ind. 246) is relied on to support the ruling-of' th&court below. The last sentence of that ©pinion,, if wrested from the connection and from the point then underconsi'd'erati'on, would give some countenance to the position assumed. But that is not a fair construction of the language.. It must be applied to the question then under consideration, which was merely whether Piersol could sue as indorsee^ the-indorsement having been changed without Grimes7' consent by striking out the name of Barton and inserting- that of Piersol. It was not intended to say more- than merely to give a negative solution to that question. But we have now a very different question. It is-whether [130] the spoliation of an instrument by a stranger, without the knowledge or consent of the parties in interest, can change the rights or liabilities of those parties. Certainly, it cannot. Ho member of this court has ever entertained a doubt upon that question, and on principle it is difficult to find any ground for a difference of opinion upon it. P. S. Kennedy, for appellant. ■8. G. and L. B. Willson, for appellee. Judgment reversed, with costs, and the cause remanded, with directions to overrule the demurrer.