Suit by the appellant against the appellee on a promissory note for one thousand dollars, executed by the appellee and one Comparet to one Story, and by him indorsed to the appellant. Comparet made default. Begue •answered:
*1771. A general denial.
2. . That his signature to the note was obtained by fraud, setting out the facts.
3. That the note was given in consideration that Comparet would immediately procure and deliver to the defendant Begue a paid up policy of insurance on the life of him, the said Comparet, in the sum of three thousand dollars, and for no other consideration whatever, which was known to the payee of the note; that the policy was never procured and delivered to him, of which fact Story was, at the time, informed.
4. That the said note was given without any consideration whatever.
The general denial was afterwards withdrawn, and a reply in denial of the second, third and fourth paragraphs of the answer was filed. A trial by jury resulted in a general verdict in favor of the defendant, and numerous special findings in answer to interrogatories.
The plaintiff moved successively for a new trial, for a venire de novo, and for judgment in his favor on the special findings; all of which motions were overruled, and proper exceptions taken. Final judgment was then rendered for the defendant. The errors assigned call in question the correctness of the action of the court in overruling the said several motions.
1. The answers to'the interrogatories are too numerous and too long to be set out in this opinion. The jury found that it was agreed by and between Comparet, Story and Begue, at and before the time the note sued on was signed,’ that the same should not be valid or binding as against Begue, until after Begue should receive the paid up policy of insurance on the life of Comparet for the sum of three thousand dollars; that this was the sole and only consideration which Begue received or was to receive for signing the note; and that no such policy was ever delivered or tendered him. These facts fully sustained the third paragraph of the *178answer, and are consistent with the general verdict. In our opinion, there was no such inconsistency of the special findings with the general verdict as would have warranted the court in rendering judgment for the plaintiff) notwithstanding the general verdict against him. Story was a party to this agreement. Hence, the doctrine in Deardorff v. Foresman, 24 Ind. 481, and cases following it, can have no application here.
2. There is no ground upon which the motion for a venire de novo could have been sustained. The verdict was certain, was responsive to the issues, and decided the whole case. Bosseker v. Cramer, 18 Ind. 44.
3. The only grounds insisted upon in the brief of counsel under the assignment of error relating to the overruling of the motion for a new trial are the insufficiency of the evidence to sustain the verdict, and the refusal of the court to give the seventh, thirteenth, seventeenth and eighteenth instructions asked by the plaintiff. Counsel for appellant argue the case mainly on the ground of fraud. In speaking of the transaction, they say, “that fraud was perpetrated, or at least attempted, by this arrangement, we have no doubt; but surely Story was not the guilty party,” etc. Conceding that he was not (and we ought to say in this connection that the jury found, in answer to one of the questions *put to them, that he was not), still it must be borne in mind that proof of fraud was not necessary in order to make out a defence to the action. There were other defences pleaded. The note was not governed by the law mer■chunt. The want or failure of consideration might be inquired into, notwithstanding the action was brought by an indorsee. The circumstances attending the execution of the note were known to Story. We do not feel at liberty to reverse the judgment for want of evidenpe. We think the verdict is not unsupported by the evidence. It is probably in accordance with the justice of the case also.
Counsel for the appellant say: “ The charges of the court, so far as given, are strongly in our favor, and, as we *179think, the law was correctly given to the jury; but the jury wholly disregarded the instructions of the court, and found their verdict contrary thereto.” The court instructed the jury at great length, at the request of the plaintiff, and also at the request of the defendant. Of the charges now objected to by counsel, only the eleventh and seventeenth were mentioned in the motion for a new trial.
The eleventh charge asked by the plaintiff related to the subject of fraud. It is evident from the whole record that the jury did not find their verdict against the plaintiff on the ground of fraud; for, in one of their answers to questions, they expressly negative the existence of any fraud on the part of Story. This being the fact, the refusal of that charge, if there was no good reason for such refusal, would not authorize us to reverse the judgment.
The evidence tends to show that the note sued upon and another for the same amount were given by Comparet, the defendant Begue being his surety on them, in consideration of the transfer by Story to Comparet of two notes of like amount held by. him on one Stoner, and that the Stoner notes were afterwards transferred to the Fort Wayne National Bank, in payment of paper of Comparet, on which Begue was indorser, held by the bank. The seventeenth charge asked by the plaintiff was as follows:
“ If you find from the evidence that the defendant Begue, after the execution of the note sued on, used and appropriated the notes of John Stoner, received by himself or Comparet in consideration of it, by endorsing and delivering the same to the bank, in payment of the debt of himself and Comparet to the bank, and thus carried out the original intention of himself and both the other parties to the transaction, and availed himself of all its advantages to him, he will be debarred from setting up any defence to this note on the ground of fraud or want of consideration.”
The only reply filed by the plaintiff to the answer of the defendant was the general denial. As this instruction sought to have the court state to the jury that Begue might *180be debarred from setting up the defences alleged by him in consequence of something which he did after the execution of the note, it becomes a question, .we think, whether that after-occurrence can be shown under the issues formed by the general denial, or whether it should not have been specially replied. The statutory rule is, that “ under a mere dental of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove.” The circumstance relied upon in the instruction is in the nature of an estoppel by matter occurring ex postfaoto. It did not tend to negative the allegations of defence made by the defendant. We think, for this reason, the seventeenth instruction asked was properly refused.
The judgment is affirmed, with costs.
Worden, J., was absent.