Spurgeon v. Swain

Davis, J. The writing on which this action is based is in the words and figures following, to-wit: “Muncie, Ind., July 1, 1893. “Mr. William A. Spurgeon: £ £ Pay to E. L. Swain or order seventy-fiye dollars, as balance due on painting of your house, and charge to account of “$15.00. J. B. Miller.” [189] It is conceded that this is a bill of exchange. The definition of a bill of exchange by Chancellor Kent is “a written order or request by one person to another for the payment of money at a specified time absolutely and at all events.” See 3 Kent’s Com. 74 (side paging). It is alleged in the complaint that appellant accepted said bill, and that the same is due and unpaid, but it does not aver that appellant had, at the time of his acceptance, funds of the drawer in his hands wherewith to meet the bill. Is the complaint sufficient to withstand a demurrer for want of facts ? Counsel for appellant insist that an oral acceptance is within the statute of frauds unless it appear that there was a consideration for the acceptance; that where no consideration is shown the oral acceptance is the promise to pay the debt of another. It is, and long has been, the law that a consideration is presumed in the case of bills of exchange and promissory notes, and in complaints thereon it is not necessary to aver the consideration. Fisher v. Fisher, 113 Ind. 474; Hinkley v. Fourth National Bank, etc., 77 Ind. 475. The consideration being presumed, the oral acceptance by appellant was a promise to pay his own debt to Miller, and not the debt of Miller to appellee. Louisville, etc., R. W. Co. v. Caldivell, 98 Ind. 245. In our opinion the court did not err in overruling the demurrer to the complaint. In view of the fact that the jury found in answer to an interrogatory that appellant was indebted to said Miller at the time he accepted the bill of exchange, there was no available error on account of the giving of the fifth instruction. In the light of the fact that the jury expressly found that appellant’s acceptance was unconditional, there [190] was no harmful error against appellant in the seventh instruction. Filed September 24, 1895. We find no reversible error in the record. Judgment affirmed.