Parker v. Jewett

Vanderburgh, J.

The only assignment of error requiring attention is the third, — the alleged error of the court in holding the answer insufficient to warrant the admission of evidence. The action is upon a promissory note. The answer sets up as a defense that the note was given for mining stock, and that the defendant purchased the same, relying upon certain representations which he alleges were false and fraudulent, and made with the intent to deceive him.

The answer winds up by stating generally that the defendant had derived no benefit in any way, and had received no consideration whatever, for the note. But the statements in respect to the representations as to the property improvements and proceedings of the mining company alleged to be untrue were such that it was necessary, in order to make out a total or partial defense to the note, to show wherein and how much the defendant was damaged by reason of the alleged fraud. He states that the note was without consideration, but from the nature of the defense set up this is not made to appear. It does not appear that the mine in question has not some value, or that the stock is worthless, or of how much less value it was than the amount paid for it; in other words, it does not show what, or how much, damages defendant has suffered. When the basis of the defense to a promissory note given upon the purchase of property — as, in this case, stock — is fraud and deceit, through which the defendant ..was induced to purchase that which proves to be of no value, or-of less.value than contracted to be paid therefor, it is obvious that the facts should be. pleaded, whether the defense attempted to -be-made is complete or partial.

And where a party -undertakes to set forth the facts specifically, a defective statement cannot be helped out by a general averment that he has secured no benefit. It seems to us, therefore, as it did to the court below, that the answer is fatally defective.

Order affirmed.

(Opinion, published 55 N. W. Rep. 56.)