
    Carter v. Harris and Another.
    
      Wednesday June 12.
    Where the maker of a promissory note is inquired of by a person who has already purchased the note, as to its validity, and answers that the note is all right, and that he will pay it, he is not estopped by such promise to contest the validity of the note ; as the assignee did not take it upon the faith of his statements.
    APPEAL from the Grant Circuit Court.
   Worden, J.

Suit by Carter against Obadiah H. Harris and Pennington B. Harris, on a note made by Obadiah II. Harris to Pennington B. Harris, and by the latter assigned to the plaintiff. Answer, by Obadiah II. Harris, among other things, a set-off of a note made by Pennington B. Harris to Obadiah II Harris. Trial by the Court; finding and judgment for the defendant.

The only important question arising in the record is whether the defendant Obadiah is estopped from setting up his set-off The facts on which the estoppel is said to have arisen, are as follows, viz.,

On or about the day the note sued on was executed, one Sines, an agent of the plaintiff, saw Pennington B. Harris, who then had the note for sale. Sines' had in his possession a deed executed by the plaintiff for certain lands in Missouri, the name of the grantee being left blank; he being an agent for the plaintiff for the purpose of selling the land. Sines and Pennington B. Harris made a contract, by which the latter indorsed and delivered the note to Sines, as such ag6nf> and Sines delivered the deed for the lands to Pennington B. Harris, but whether his name was inserted as the grantee does not appear. Erom two weeks to two months after this, Sines, in the presence of the plaintiff, saw the defendant Obadiah II. Harris, and inquired of him as to the validity of the note, stating to him that he had bought a $600 note on him of Pennington B. Harris, and asked him if it was all right. Obadiah replied that it was all right, if Pennington sent him a certain bond, and that he knew or reckoned ” Pennington would do that, and that “ it was all right.” Sines told him the bond had nothing to do with the note, to which he made no reply. Sines then told him not to purchase any notes or accounts against the note thereafter, as he had bought it. After this conversation, the plaintiff' took the note off the hands of his agent, Sines. The note set up by Obadiah H. Harris as a set-off was not acquired after the conversation alluded to, but was then held by him.

We are clearly of opinion that the facts do not amount to an estoppel. Even on the supposition that the facts are otherwise sufficient to work an estoppel, they lack this essential requisite for that purpose, viz., the note sued upon was not purchased upon the faith of the statements made by the defendant, Obadiah II. Harris, but, on the contrary, was purchased and indorsed to the plaintiff before the statements were made. We regard as totally immaterial, the fact that the plaintiff' did not receive the note from his agent until after the conversation alluded to. The plaintiff can occupy no better position than could Sines, his agent, had he been acting for himself. Sines stated to the defendant that he had bought the note, and it does not appear that the defendant knew but that he had bought it for himself, or that the plaintiff had, or was to have, any interest in it. Had the defendant Obadiah II. Harris known,- (if such were the fact,) or had he been told, that Sines was acting in the purchase of the note as agent of the plaintiff, and had exceeded his authority; and had the plaintiff been, induced by the statements to ratify the acts of his agent, and receive the note from him, a different question would have been presented. The following cases are in point, upon the question here involved. Black v. Mitchell, 14 Ind. 397; Morrison and Newby v. Weaver and Weaver, ante. p. 344; Wright v. Allen, at the present term.

J. II. Jones, for the appellant.

A. Steele and II. P. Thompson, for the appellees.

Per Curiam.

The judgment is affirmed, with costs.  