Chapman v. McCrea et al.

Reply to the

Trial of the

for the ap

contract. Answer in denial, payment, etc. affirinative paragraphs of answer in denial. issues by the court; finding and judgment pellee, the plaintiff below, in special term. Motion for a new trial, alleging for causes that the finding was contrary to law, was not supported by evidence, and that the damages were excessive. The motion was overruled, and exceptions reserved. The judgment at special term was affirmed, on appeal, in general term.

On appeal to this court, it is assigned for error that the court, in general term, erred in affirming the judgment at special term.

The question here presented is on the weight of the evidence. We can not reverse the judgment in this case on that.

The judgment is affirmed, with costs.

CHAPMAN V. MCCREA ET AL.

NEGLIGENCE.-Liability of Bank for Failure to Protest Promissory Note.Pleading.-A promissory note payable in a bank of this State was deposited, before maturity, with that bank, by a bona fide endorsee, for collection; but, on maturity of the note, which remained unpaid, the bank failed to protest the note and to notify the endorser of its non-payment, and within ninety days thereafter the maker was adjudged a bankrupt, whereupon the endorsee sued the bank for damages.

Held, on demurrer to the complaint, which alleged such facts and set out a copy of the note, that the complaint is sufficient.

From the Wabash Circuit Court.

M. H. Kidd, for appellant.

W. G. Sayre, for appellees.

BIDDLE, J.-The appellant complains of the appellees as follows:

Chapman v. McCrea et al.

That the defendants are partners, doing a general banking business at the city of Wabash, in the State of Indiana, under the firm name and style of the Citizens Bank, and especially engaged in making collections and remitting the proceeds for hire; that, on the 23d day of September, 1875, the plaintiff placed in the hands of the defendants, as such partners, engaged in conducting said Citizens Bank, for collection, and the defendants then and there undertook and faithfully promised to collect, for a reasonable compensation, a certain promissory note made by John R. Wallace and Cornelius E. Deihl, by the firm name and style of Wallace & Deihl, payable to Dwight Loomis, at the said Citizens Bank, then situated and doing business in the said city of Wabash, said note bearing date August 20th, 1875, and due at sixty days after date, calling for one hundred and seventy-five dollars and ninety-five cents, payable at the defendants' bank, and by said Loomis, who was at the time and still is solvent, for a valuable consideration, endorsed in writing on the back thereof, before maturity, to the plaintiff, a copy of which is filed herewith; that the said note was not paid at maturity or any part thereof; that, at the maturity of said note, the same was in the possession of the defendants and of their bank for collection, and that the defendants and their said bank wholly failed and neglected to protest said note for non-payment, and wholly failed and neglected to notify said endorser of the non-payment of said note, whereby the endorser became and is released from his liability to pay the same; that, on the 30th day of December, 1875, the firm of Wallace & Deihl and each of them became insolvent, and were adjudged bankrupts; that said note is still due and unpaid, except the sum of seventy dollars; that, by reason of, etc. Wherefore, etc.

A demurrer, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, was

Chapman v. McCrea et al.

sustained, and judgment rendered against the appellant. He excepted and appealed.

We can not see any objections to this complaint. It is analogous to the case of Tyson v. The State Bank of Indiana, 6 Blackf. 225, in which the State Bank was held liable, through its branch at Lafayette, upon a similar state of facts. In the opinion of the court, delivered by SULLIVAN, J., the case is stated as follows:

"The State Bank, through one of its branches, having undertaken, for a reasonable reward, to collect the plaintiff's debt, placed itself in the situation of an agent or attorney, who, for reward, undertakes to perform services for another in the line of his business or profession. He is bound to a faithful discharge of his duty, and is responsible to his employer for all damages arising from his neglect."

In the case of The American Express Co. v. Haire, 21 Ind. 4, this court quotes, with approval, the following sentence from Edwards on Bills of Exchange, p. 405:

"Where a bank with whom a note is deposited for collection fails to take the proper steps to charge the drawer or indorsers, in consequence of which the holder is unable to collect the amount of the bill, the measure of damages is the face of the bill with interest."

These principles are fully recognized and approved in the case of The Montgomery County Bank, v. The Albany City Bank, 7 N. Y. 459.

In the case before us, the note received for collection by the Citizens Bank was commercial paper, and the failure to protest it for non-payment discharged the endorser.

We think, therefore, that the facts averred in the complaint make the appellees liable to appellant for whatever damages he has sustained thereby.

The judgment is reversed, at the costs of the appellees, and cause remanded with instructions to overrule the demurrer to the complaint, and for further proceedings.

Marsh v. Terrell.

MARSH . TERRELL.

NEW TRIAL. -Assignment of Error.-Evidence. - Instruction. — verdict. Supreme Court.-The allegations that a verdict is contrary to law and is not sustained by sufficient evidence, and alleged error in admitting or excluding evidence, or in giving an instruction to the jury, are causes for a new trial, and are not proper assignments of error in the Supreme Court. SAME.-Causes for New Trial.-Motion.-A motion for a new trial must specify clearly and particularly the grounds of the motion.

From the Lawrence Circuit Court.

S. C. Willson, L. B. Willson and N. Crooke, for appellant.

G. Putnam and G. W. Friedley, for appellee.

Howк, C. J.-This was an action by the appellant, as plaintiff, against the appellee, as defendant, to recover the possession of certain real estate, particularly described, in Lawrence county, Indiana.

The appellant's complaint was in the usual statutory form in such cases; and to this complaint the appellee answered by a general denial.

The issues joined were tried by a jury, and a verdict was returned for the defendant, the appellee in this court.

The appellant's motion for a new trial was overruled by the court, and to this decision he excepted, and filed his bill of exceptions, and judgment was rendered on the verdict, in favor of the appellee and against the appellant, for the costs of suit, from which judgment this appeal is now prosecuted.

In this court, the appellant has assigned, as errors, the following decisions of the circuit court :

"1. In ruling that the appellant had not sufficiently established the destruction of the records of the Cook County Court, of the State of Illinois, by fire, to let in secondary proof of the contents of said records;

"2. In permitting the appellee to read in evidence the

Marsh v. Terrell,

deposition of Cyrus M. Allen, which was not filed for several days after this cause was set for trial on the docket of said court at said term;

"3. In permitting the appellee to give parol testimony to contradict the covenants in Allen's deed to Cochran and its other recitals and impeaching his own recorded warranty deed;

"4. In giving instructions to the jury, excepted to by the appellant at the time, especially the third, fourth and fifth instructions;

"5. The verdict of the jury was contrary to law;

"6. The verdict of the jury was not sustained by sufficient evidence; and,

"7. The court erred in overruling the appellant's motion for a new trial."

It will be readily seen, we think, that each and all of these alleged errors, with the exception of the seventh and last, are merely causes for a new trial. They should have been assigned as causes for a new trial, in the appellant's motion therefor addressed to the circuit court. They were not properly assigned, in this court, as independent errors; and, as such errors, they present no questions for consideration or decision. This is well settled by numerous decisions of this court. Freeze v. DePuy, 57 Ind. 188; Wiley v. Barclay, 58 Ind. 577; Bailey v. Boyd, 59 Ind. 292; Walls v. The Anderson, etc., R. R. Co., 60 Ind. 56.

The only questions for decision, therefore, in this case, are those which arise under, and are fairly presented by, the seventh and last alleged error-the overruling of the appellant's motion for a new trial. In this motion, the following causes were assigned by the appellant for such new trial:

1. The verdict was contrary to law;

2. The verdict was not sustained by the evidence; 3. "The court erred in excluding on the trial legal, competent and material evidence offered by plaintiff;"