In tbe court below, appellee, as indorsee, brought this action against appellants to enforce payment of a promissory note for $1,200, dated at Mount Ayr, Indiana,
This cause was submitted to a jury for trial upon the complaint, alleging, among other facts, “that the plaintiff holds said note in good faith; that he obtained it before maturity, paid a valuable consideration therefor, and at the time he so paid said consideration and took said assignment he had no notice of any defense thereto on the part of the makers of said note.” There was an answer in five paragraphs: (1) A general denial; (2) material alteration of the note sued on after its execution; (3) breach of a written warranty of a certain horse for which the note- in suit was given; (4) non est factum; (5) failure of consideration. There was a reply in general denial. The jury returned a general verdict in favor of appellee, together with its answer to an interrogatory submitted by the court on its own motion. Judgment was rendered in favor of appellee on the verdict.
Appellants’ motion for a new trial was overruled, and this ruling is the only error presented for our consideration. Appellants, in support of this motion, first insist that the court erred in submitting to the jury, over their objection, the following interrogatory: “Did B. B. Miller sign his name to the note in suit on March 29, 1904, at Mount Ayr, Indiana?”
1. It is claimed that under the act of 1897 (Acts 1897 p. 128, §572 Burns 1908) the court under no circumstances is authorized to submit interrogatories to the jury unless requested so to do by at least one of the parties to the action. Said act repealed §546 R. S. 1881, which provided for special and general verdicts. By the repealed section the court in all cases, when requested by either party, was required to instruct the jury, if it rendered a general verdict, to find specially upon particular questions of fact to be stated in writing. Under this pro
Appellants also insist that the court erred in giving to the jury certain instructions. Our attention is first called to instructions four and five, given by the court on its own motion. It is argued that instruction four is predicated on §9071 Burns 1908, §5501 R. S. 1881, which makes all written promises negotiable by indorsement, and that instruction five is based on §9076 Burns 1908, §5506 R. S. 1881, and is erroneous, for the reason that no evidence was introduced showing that the note in question was payable in a bank in this State. It is true that the note in suit, although negotiable by indorsement, would not be free from defenses in the hands of appellee under §9071, supra. The right of plaintiff to recover under instruction four was not made to depend upon the fact alone that the note was negotiable by indorsement. The jury was told that if it found from all the evidence that the plaintiff was the owner of the note described in the complaint, that he took it before maturity,
2. There ivas evidence before the jury tending to show that B. B. Miller signed the note as a maker, and that after its execution Miller’s name had been removed therefrom. No other alteration is claimed. There was also evidence tending to support the alleged breach of warranty of the horse, and that the consideration for the note had failed. The note itself was introduced in evidence. It had no visible erasure marks, nor was it interlined. It was the duty of the court to apply the law to the note as it appeared upon its face, and to instruct the jury regarding the defenses urged against it. It was for the court to say whether the note upon its face was governed by the law merchant. Nipp v. Diskey (1881), 81 Ind. 214, 42 Am. Rep. 124; Louthain v. Miller (1882), 85 Ind. 161. It was in the hands of an indorsee, and as no infirmity appears upon its face, its possession and production raise the presumption that it came into the hands of the holder “in the usual course of business, for value, without notice of any defect in the consideration.” Sondheim v. Gilbert (1889),
3. As the correctness of instructions four and five, and most of the others to which objection is made, depends upon whether the note in suit was negotiable as an inland bill of exchange, it is necessary that we pass upon that question. It is the theory of appellants that it was not, and in support of their contention they insist that as it was payable “at the Bank of Mount Ayr” instead of “in the Bank of Mount Ayr,” and it not appearing that the bank named was in Indiana, as required by statute (§9076, supra), therefore its place of payment was uncertain. It must be conceded that certainty is required by the law merchant, and uncertainty in any of the essential elements of a note to bring it within that law will destroy its negotiability as an inland bill. Whether the note in question should be given the dignity claimed for it must be determined from the facts appearing upon its face, unaided by extraneous evidence. Crossan v. May (1879), 68 Ind. 242, 245.
4. 5. A promissory note is not negotiable as an inland bill of exchange, unless upon its face it shows that it is^ an unconditional promise to pay a certain sum of money at a fixed time in a bank of this State. Gilpin v. People’s Bank (1909), 45 Ind. App. 52. The note in suit, upon its face, is dated at Mount Ayr, Indiana, March 29, 1904, and is an unconditional promise to pay $1,200, September 1, 1907, “at the bank of Mount Ayr.” While the state in which the note is payable is not named in connection with the name of the bank, yet from the fact that it was executed at Mount Ayr, Indiana, and payable “at the bank of Mount Ayr;” the conclusion would naturally follow that the bank named was in the town named, in Indiana. In the case of Walker v. Woollen (1876), 54 Ind. 164, 166, 23 Am. Rep. 639, it was
In the case of Crossan v. May, supra, at page 245, it was said: “In order to place a note upon the footing of bills of exchange, it should show on its face that it is payable at or in a hank.” (Oúr italics.) See, also, Indianapolis Piano Mfg. Co. v. Caven, supra. As to the question under consideration, this ease is distinguishable from the case of Hardy v. Brier (1883), 91 Ind. 91, where the note was made payable “at the bank at Attica, Indiana,” and the case of Butterfield v. Davenport (1882), 84 Ind. 590, where the note was dated “Concord, June the 5th, 1878,” and “payable at the Bank of Goshen,” and the ease of Rominger v. Keyes (1881), 73 Ind. 375, where the note was dated
6. Appellants insist that instructions one to eight, inclusive, tendered by appellee and given by the court, were erroneous and harmful. As to the first, our attention is called to the part that told the jury that “this note is payable in a bank in this State.” We find no objection to this statement, as no claim is made that the body of the note had been changed in any particular after its execution. The statement was in keeping with the face of the note, and it was not error for the court thus to construe it.
7. Instruction two is claimed to be erroneous, for the reason that it assumes that plaintiff had-made out his case, and was entitled to recover, unless the jury should find that the note had been materially altered after its execution, by the removal therefrom of the name of B. B. Miller. As we have seen, there was evidence tending to support other defenses than the one named in this instruction, all of which would have been available to appellants had the suit been prosecuted by McLaughlin Brothers. But as between appellants and appellee, the latter, by reason of the character of the paper in question, holds it free from such defenses, only in case he took the note before maturity, in the usual course of business, for a valuable consideration, without notice of facts affecting its validity, or of a defense on the part of the makers. Bradley, Holton & Co. v. Whicker (1899), 23 Ind. App. 380. These were all essential elements, and all must be proved before it can be said that appellee was a bona fide holder, and entitled to the protection of the law as ap innocent holder. Giberson v. Jolley (1889), 120 Ind. 301. Appellee’s testimony authorized a finding that he was a bona fide holder. He was
"What we have said with reference to the objections urged against this instruction, applies with equal force to the specific defects claimed in each of the other instructions. Our investigation of the questions under consideration has
Judgment affirmed.