21 Ind. 492 | Ind. | 1863
This suit, commenced in the Dearborn, and taken, by change of venue, to the Union Circuit Court, was instituted for the foreclosure of a mortgage, alleged to have been executed to secure the performance of the condition of a certain bond, reading as follows:
“Know all men by these presents, that we, John Cobb and Oliver P. Cobb, of the county of Dearborn, and State of Indiana, are held and firmly bound unto the city of Aurora, in the penal sum of 60,000 dollars, for the payment of which, well and truly to he made and done, we bind ourselves, our heirs, executors, administrators, and assigns, jointly and sev*494 ©rally, by these presents. Sealed with our seals, and dated this third day of June, in the year of our Lord one thousand eight hundred and fifty-three:
“The condition of the above obligation is such that: "Whereas the city of Aurora has executed to the Ohio and Mississippi Railroad Company thirty bonds of said city of Aurora, dated the first day of January, in the year 1853, and numbered from one to thirty, for 1,000 dollars each, payable twenty-five years from date, bearing interest at the rate of six per cent. per annum, payable annually, on the first day of January, at the North River Bank, in the city of New York, which said bonds were executed by the city of Aurora to said railroad company, in part payment of a subscription of 50,000 dollars to the capital stock of said railroad company, made by said city of Aurora, by order of the city council of the city of Aurora, in which said bonds there is a stipulation, that the holders of said bonds should have a lien on the stock of said city, in said company, for which said bonds were received in payment; and that the holders of said bonds might exchange the same for a like amount of said stock at any time before the first declaration of a cash dividend, and be substituted as stock holders in place of said city, upon the surrender of any portion of said bonds; and whereas, the city of Aurora, in pursuance of an order of her city council, passed on the 3d day of June, 1853, has this day executed to the said John Cobb and Oliver B. Cobb a contract or deed, conveying, assigning and transferring to said John Cobb and Oliver P. Cobb all the right, title, interest and claim of said city of Aurora, in and to 30,000 dollars of the said stock subscribed by her in said railroad company, and represented by her said thirty bonds of said city, for 1,000 dollars each, and numbering from one to thirty, and dated and conditioned as aforesaid, with full right and authority on the part of said John Cóbb and Oliver P. Cobb to receive the eight per centum inter*495 est in stock, upon said 30,000 dollars of stock, represented by tbe aforesaid bonds, until said company shall make a declaration of a cash dividend by said company, unless the holders of said bonds shall substitute themselves as stock holders, in the place of said city, by surrendering said bonds before the first declaration of a cash dividend; that the said John Cobb and Oliver P. Cobb should become the assignees and owners, absolutely, of the 30,000 dollars of the stock represented by said bonds, with full right and authority to receive the dividends, profits and advantages arising from the ownership of said stock, which contract was executed on behalf of said city to the said John Cobb and Oliver P. Cobb, in consideration that the said John Cobb and Oliver P. Cobb would assume all the obligations and liabilities on the part of said city of jtyirora, on account of the principal and interest of the aforesaid bonds, and indemnify her against the principal and interest of said bonds by this bond, and by mortgage on real estate in the city of Aurora, a description of which is contained in a mortgage executed by the said John Cobb and Oliver P. Cobb, and their wives, to the city of Aurora, and bearing even date with these presents, and in consideration that the said John Cobb and Oliver P. Cobb would give to said city a lien upon said 30,000 dollars of stock in case the holders of said bonds should not substitute themselves as stock holders before a declaration of a cash dividend as aforesaid: Now, if the said John Cobb and Oliver P. Cobb shall well and truly pay, or cause to be paid, all the interest that may accrue on said bonds, numbered from one to thirty inclusive, for which the said city of Aurora may in any way be liable, according to the tenor and effect of said bonds, and save the city of Aurora harmless on account of the interest accruing upon said bonds as aforesaid; and in case the holders of said bonds shall fail to surrender said bonds, and substitute themselves as stock holders as to all or any portion of said bonds,*496 before a declaration of cash dividends: If the said John Cobb and Oliver P. Cobb shall and do pay the principal and interest of said bonds that may not have been surrendered as aforesaid, and save said city of Aurora harmless on account of the principal and interest of said bonds, then this obligation to be void, else to remain in full force and virtue in law.
“ "Witness, &c., the day and year first above written.
“Oliver, P. Cobb, [seal].
“John Cobb, [seal].”
Breaches of non-payment, &c., were assigned, and 3,500 dollars claimed as damages.
The condition of the mortgage, sought to be foreclosed, is as follows : “Provided, always, and these presents are expressly upon this condition: that, whereas, the said John Cobb and Oliver P. Cobb have executed to the city of Aurora their bond, in the penal sum of 60,000 dollars, bearing even date with these presents, and conditioned, among other things, that the said John Cobb and Oliver P. Cobb should pay the principal and interest of thirty bonds, executed by the city of Aurora to the Ohio and Mississippi Railroad Company, for 1,000 dollars each, in payment of stock in said railroad company, this day sold and assigned by said city of Aurora to the said John Cobb and Oliver P. Cobb, and save the said city of Aurora harmless on account of the principal and interest of said thirty bonds aforesaid, for 1,000 each, and numbered from one to thirty inclusive. Now, if the said John Cobb and Oliver P. Cobb shall well and truly pay, or cause to be paid, the principal and interest of said thirty bonds for 1,000 dollars each, and numbered from one to thirty, according to the tenor and effect of their bond aforesaid, executed by them to the city of Aurora, and save said city harmless on account of the principal and interest of said thirty bonds of said city of Aurora, for 1,000 dollars each, and numbered as aforesaid,
A demurrer to the complaint was overruled and exception taken.
The defendants answered. .There was a demurrer to their answer, but as the ruling on it was waived by their afterwards filing a substituted answer, we need not inquire as to its correctness. Caldwell v. The Bank of Salem, 20 Ind. 294.
The substituted answer was this :
4. And for further answer to said complaint, defendants say that on or about the 3d day of June, 1853, they, the said defendants, entered into an agreement with the plaintiff for the purchase of 30,000 dollars of the capital stock of the Ohio and Mississippi Railroad Company, which the plaintiff represented that it had owned and legally subscribed for, and could and would sell and deliver to the defendants, and which stock was then of the par value thereof; and by virtue of which agreement it was also provided that the stock should be at once transferred to defendants and the certificates thereof immediately delivered to them, unincumbered by any other lien or condition except a lien to said city, for the payment of the interest and principal of thirty bonds, of 1,000 dollars each, which the plaintiff was to sell for the payment of said stock; and the further conditions that the holders of said bonds might have a lien thereon for the payment of the interest and principal of said thirty bonds, and might at any time, before a declaration of cash dividend, substitute themselves as stockholders for the said 30,000 dollars of stock, upon the surrender of said bonds, agreeably to the terms of said bonds, and that the said defendants were to have imme
5.. And for further answer to said complaint defendants say,
The following is the indorsement written across the face of the certificates of stock in red ink:
“ This stock, with 400 other shares of same stock, making in the aggregate 1,000 shares, is subject to the lien of the holders of certain bonds for 1,000 dollars each, numbered from one to fifty, issued by the said city of Aurora to the Ohio and Mississippi Railroad Company, dated January 1, 185 , and all other conditions and stipulations in reference thereto stated in said bonds.”
7. And the defendants, for further answer to the said complaint, say that at the time of the signing and sealing of the said bond, and the signing, sealing and acknowledgment of the said mortgage, the stock of the Ohio and Mississippi Railroad Company was of the par value thereof, and the said bond was signed and sealed, and the said mortgage was signed, sealed and acknowledged as a part and parcel of the agree
The plaintiff moved to strike out the paragraphs of the amended answer on three grounds; but the Court refused the motion. The grounds were:
1. That the Court improperly permitted them to be filed after the original answer had been withdrawn.
Touching this ground of the motion, we may say that it was in the power of the Court to permit the amended answer to be filed. That power was to be exercised with reasonable
2. That the paragraphs of the amended answer were all alike. If such were the fact, the Court might properly have stricken out, in any event, all but one of them. Whether the refusal to thus strike out, where the Court might have done it, would constitute error, will be remarked upon, when noticing another point.
3. That the paragraphs severally amounted but to the general denial. If such were the fact, and the general denial, in form, was on file, the Court might properly, perhaps, have stricken them out; and, if the general denial was not on file;, in form, still, if the paragraphs of the amended answer severally amounted but to the general denial, the' Court might properly have stricken out all but one of them, especially, if the motion had been thus. limited; but would certainly not have been bound, in such a state of facts, to strike out a part on a motion to strike out all.
After the Court had overruled the motion to strike out, the plaintiff demurred to the paragraphs- of the substituted or amended answer, and assigned for- causes:
1. That they amounted to the- general denial, which was already pleaded in form.
2. That they attempted to set up matter which the defendants were estopped, by the recitals in the- bond and mortgage-sued on, to plead.
The demurrer was overruled.
The plaintiff then replied in denial of the-answer. There-was a trial, and a judgment for the defendants.
Did the Court err in overruling the demurrer to the substituted answer?
By the code, there are six grounds of demurrer:-.
1. No jurisdiction.
2. Want of legal capacity to sue..
4. Defect of parties.
•5. Want of sufficient facts.
6. Improper joinder of causes of action.
The first ground of demurrer to the substituted answer was neither of- these six, and, of course, the demurrer, by the express provision of the statute, would have had to be overruled, had it assigned but that cause. 2 G. & H., p. 81. As to the second ground, it is argued that, an answer setting up matter which a party may be estopped to plead, may contain facts enough to bar the action, if the party takes issue upon it, as he may do, thus failing to take advantage of the estoppel. It is claimed that this is like failing to take advantage of the statute of limitation. As to that statute, a party may sue upon facts barred by that statute, but if the party do not avail himself of the statute, the facts will be sufficient to constitute a cause of action. So, facts, not allowed to be pleaded because they constitute a departure, nevertheless may be sufficient, if the departure be not properly taken advantage of. It is claimed that the irregularity in such cases is to be taken advantage of by motion to strike out; that it is no more inconvenient than, and is equally effective as a remedy, as a demurrer, and is the mode prescribed by statute. Reilly v. Rucker, 16 Ind. 303. But see Ensey v. The Cleveland, &c., 10 Ind. 178. We pass this point, as it’will appear as we proceed, that no estoppel exists in the case. This leads us back to the act of the Court in overruling the motion, which was made to strike out, &c.
We inquire then:
1. Did the paragraphs of the answer amount severally to the general denial?
If they did, we may observe, it is difficult to perceive what harm they did the plaintiff*. Suppose a defendant should repeat, in form, the general denial three or four times; that the
Again, a defendant may, in many cases, according to cor-, rect rules of pleading, plead specially what might be given in evidence under the general denial. Mr. Stephens says, “ it is laid down that the reason of pressing a general issue is not for insufficiency of the [special] plea, but not to make long records where there is no cause.” Ubi supra. However, we waive this point, also, because we think the paragraphs should be regarded, not as in effect general denials, but at all events, as answers of want of consideration. The paragraphs may be double. They do not show how the plaintiff got possession of the bond and mortgage — they do not show that the bond and mortgage were ostensibly delivered to the city as an escrow, or at all. They aver that the city has them, but wrongfully. They contain, perhaps, the requisite averments of special answers of non est factum — some facts tending to show fraud, and certainly all the averments necessary to show want of- consideration. No objection was made to them for duplicity, by motion, and duplicity is not a cause of demurrer. See 2 G. & H. supra.
Failure of consideration may be pleaded, under the code, “to any action,” &c., “upon, or arising out of any specialty bond or deed, except,” &c. 2 G. & H. 106. "What then are
One of the paragraphs of the answer admitted the offer on the part of the plaintiff to deliver to the defendants the 80,000 dollars of stock contracted for, but subject to the lien, not of 30,000 dollars of bonds, as the defendants were willing to receive it, but to the lien of 50,000 dollars of bonds. This
But it is contended that, the answer is inconsistent with the recitations of the contract in the bond and mortgage sued on, and involves the necessity, in its proof, of a violation of the principle that parol evidence can not be given to contradict a written instrument. Let us see. The bond recites that the city of Aurora was to execute a written instrument transferring the stock. The mortgage, executed at the same time, and a contract of equal dignity, recites that the city was to transfer the stock and assign the certificates. The two instruments must be taken together. Now, the answer exactly negatives performance, on the part of the city, of the contract as stated in the mortgage. It also negatives performance of the contract as stated in the bond, and further, states an additional act to be performed, and negatives the performance of it, which act, it is alleged, was a part of tbs consideration, &c. But such additional consideration might legally be stated, and proved by parol evidence, even were it not recited in the mortgage. Rockhill v. Spraggs, 9 Ind. 32. See also, 12 Cush. 591.
Viewing the answer, then, as setting up want of consider
This form of pleading, we think, admits a prima facia case in favor of the plaintiff, and undertakes the avoidance of it. 1 Green. Ev., 10 ed., p. 50, sec. 38; also, secs. 284, 285. Doubtless the defendants might have elected to answer the general non est factum, under which all the facts could have been given, but the burden of the issue would have been thrown upon the plaintiff. Union Bank of Maryland v. Ridgley, 1 Har. & Gill, 353, is in point. So is Pitman v. Kintner, 5 Blackf. 250.
But we decide the cause upon the answers, viewed as answers of want of consideration. The record satisfactorily shows that the general denial was withdrawn, before going into trial; hence, as the paragraphs of the answer set up affirmative matter, the right to open and close was with the defendants, unless the plaintiff was bound to prove her damages. Mercer v. Whall, 5 Ad. & Ell. 48, Eng. Com. Law Rep. p. 447.
At common law, in a suit upon a note, it is probable that the plaintiff would have been bound to give his note in evidence to prove his damages; but under our code, as the plaintiff must place his note, or a copy of it, on the record with
The opening and close were rightly given, in this case, under the circumstances, at all events, to the defendants.
The two first, that the verdict was contrary to law and evidence, we can not pass upon, because the record does not purport to contain all of the evidence. Hamilton v. Johnson, 20 Ind. 392. What we have already said, also disposes of the 5th, 6th, 7th and 9th grounds for a new trial. The third is too general. Some of the instructions were correct, and those erroneous should have been specified. This third ground is in these words: “The Court misdirected the jury in the charge given to them.” The 4th, 10th, 11th, 13th and 15th grounds are obnoxous to the same objection. Scoville v. Chapman, 17 Ind. 470. We proceed to another ground.
The deposition of Solomon P. Tumy, was taken in Detroit, Michigan, in October, 1862, of which city he appears, by the deposition, to have been at the time a resident. The plaintiff, to impeach his character, asked a witness what Tumy’s character was, at that date, in Aurora, Indiana. This question was, prima facie, irrelevant, because it did not seek to ascertain his character among his friends and neighbors. 1 Green. Ev. sec. 461.
The plaintiff then asked when Tumy left Aurora, and under what circumstances. This question, had it been limited to the first clause, of it, viz: that inquiring when Tumy left, would have been unobjectionable, but, by the second clause, it was made to cover too much, and was, therefore, rightly excluded as a whole. If it had turned out that Tumy left a long or considerable time before his deposition was taken, inquiries as to his character at Aurora would have been impertinent, because the plaintiff' would have no right to prove his character at such times. Evidence of character must go to show it at the time a witness testifies. A bad man may suddenly become a legally good one, and worthy of credence.
Tumy’s deposition was read in evidence. It covers forty-five pages of foolscap. The record states that the plaintiff excepted to its being read, but states no ground of objection. We can not search the deposition to find such, nor was the Court below bound to. Nothing appears showing Tumy to have been an incompetent witness. See, as to this point, 2 G. & H. 178, secs. 265, 266; Russell v. Branham, 8 Blackf. 277; Torr v. Torr, 20 Ind. 118.
The Cobbs paid the interest on the city bonds for a year or two. It was claimed that that fact was an admission of a completed contract with the city. Parol evidence was admissible to show that the payment was upon other considerations. The Court is said to have erred in giving special interrogatories to the jury to be answered, or for special findings, but why was not stated to the Court below. The objection need not be noticed.
It is objected that all the special questions were not answered, but the Court was not asked to send the jury back to supply the omission. Rosser v. Barnes, 16 Ind. 502.
In some instances, objection was made to questions put to witnesses, but no objection was made to the answers; hence, it is insisted, that objections to them may be considered as waived. Though the questions were illegal, it is argued, still the answer may, in the opinion of the objector, have been harmless or favorable to himself, and its exclusion from the jury not desired. We do not concur in this view, but still do not think the’ error in this case was so material, as presented by the record, that it should reverse the case. If the answer be harmless, it is not important that the question was improper. 19 Ind. 318.
It is the rule, in this State, that the cross-examination must
The Court was asked to give its general instructions in writing, which it did not do; but it is not shown that the request for written instructions was handed to the Court in proper time to enable the Court to prepare them before the close of the argument. 16 Ind. 275; 10 id. 338.
It is objected that the Court did not instruct the jury generally at all, but only gave the special instructions handed up by both parties. If those instructions covered the entire case, we see no reason why the Court should have given further instructions of its own preparing. We must presume that the Court below considered the whole ground covered. And if it did so, it would hardly know what further to say.
But we will not continue answering these objections; and, owing to the length to which this opinion is extending, we have been brief in our notice of numerous points remarked upon, but, we trust, none the less understood. We have felt that it was due to the counsel, who have so ably and thoroughly argued the cause in this Court, as well as to the importance of the cause to the parties, in a pecuniary point of view, that we should not entirely omit to notice any plausible point made. We notice one, and but one more, in conclusion.
On the day that the cause was set for trial, being the fifth day of the term, the plaintiff asked for a continuance on account of the absence of several witnesses, who had been subpcened, and of two who had not been. The continuance was refused, but the cause went over for about two weeks — ample time to have procured the attendance of the witnesses subpcened, and most of whom, in fact, appear to have been present when the cause was tried. When the cause came on for trial, the motion to continue was not renewed. The cause had been pending about eleven months, and no valid excuse is shown for failing to subpoena, or to procure the depositions
"We discover no error for which the judgment below should be reversed.
Per Curiam. — The judgment is affirmed, with costs.