125 Ind. 277 | Ind. | 1890
— The complaint of the appellee sets out three written instruments. The first is dated April 9th, 1886, and is signed by the appellee and by Robert A. Clark, James L. Reckard, Frederick E. Minor and Arthur M. Kinney. In this instrument the appellee agrees to furnish to the parties
The course pursued by the appellants in their attack by •demurrer is an unusual one and has produced confusion, but they can not be permitted to profit by the result of their own departure from the proper mode of procedure. It is very doubtful whether the last demurrer, in which all joined, is not a waiver of the second, for it may well be questioned whether a joint demurrer which repeats causes assigned in a former separate one does not waive the separate demurrer. Rut the course of argument adopted by counsel renders it unnecessary to decide this question.
We shall decide the questions presented in the appellants’ brief, and only such questions as are there argued. That there may be no misunderstanding upon this point we copy all that counsel say respecting the ruling upon the demurrers. What they say is this : “ In this complaint there was clearly a misjoinder of parties. Lannum was a stranger to the contract made by his co-defendants. He was not a party to this contract, nor was he a party having a privity of interest with his co-defendants in the original contract. As to the other defendants there would be a severance of the original contract, and by the subsequent contracts entered into by appellee, on June 29th, 1886, the appellee looked to Clark and Reckard alone for the payment of twenty-five of these machines, and to Kinney & Minor, with Lannum as their surety, for the payment of the remaining twenty-five machines. Therefore, this action should have been brought against these sets of defendants separately; and the joining of these actions, and by it these parties, was clearly an error.” It is somewhat difficult to determine upon what theory the argument proceeds, and much is left to conjecture. If it proceeds upon the theory that there was a misjoinder of causes of action, it will avail nothing, because the statute expressly forbids a reversal upon that ground. If it proceeds upon the
The machine which the appellee undertook to deliver to the appellants is not specifically described, for it' is designated as a “ Cooley Hay Stacker,” and the courts can not say that all “ Cooley Hay Stackers ” are of a certain size and kind. It was, therefore, proper to admit parol evidence to identify the kind of stackers contracted for, and thus apply the contract to its subject-matter. It is a familiar rule that parol evidence is competent to apply a contract to its subject-matter, and that rule applies to this case. Wills v. Ross, 77 Ind. 1 (13) ; Stoops v. Smith, 100 Mass. 63 (1 Am. Rep. 85).
The appellants* counsel assert that the court erred in refusing instructions asked, but they content themselves with the bare assertion, adducing neither argument nor authority in its support. "We can not, without a violation of our rules and a departure from our decisions, consider any question as presented upon the instructions.
The answers to special interrogatories do not state such facts as override the general verdict. The rule is that the general verdict will stand if the answers can be reconciled with it upon any reasonable hypothesis, and there is no difficulty in doing that in this case.
Judgment affirmed.*