10 Ind. App. 364 | Ind. Ct. App. | 1894
The appellant was the plaintiff in the court below. In its complaint it is alleged that Davis and Rankin, a co-partnership, entered into a written and printed contract with the appellees, to build, erect, and complete for the appellees, at or near Logansport, Indiana, a butter factory for the sum of $5,200; that Davis and Rankin performed their part of the contract to the
“We, Davis and Rankin, party of the first part, hereby agree with the undersigned subscribers hereto, party of the second part, to build, erect, complete, and equip for said party of the second part, a butter factory, at or near Logansport, Ind. ******
“Said Davis and Rankin agree to erect said butter factory as set forth by the above specifications for $5,-200. ***** payable one-half cash when factory is completed, and one-half in three months from completion, interest at six per cent. In shares of one hundred dollars each.
“We, the subscribers hereto agree to pay the above amount for said butter - when completed, said building to be completed in ninety days, or thereabout, after the above amount of $5,200, is subscribed. * * *
“As soon as the above amount of $5,200 is subscribed, or in a reasonable time thereafter, the said subscribers agree to incorporate under the laws of the State as herein provided, fixing the aggregate amount of stock at not less than the amount to be divided into shares of $100 each, said share or shares as above stated to be issued to the subscribers hereto in proportion to their paid up interest herein, and it is herein agreed that each stockholder shall be liable only for the amount of stock subscribed by him. ********
*366 “It is hereby understood, that Davis and Rankin will not be responsible for any pledges or promises made by their agents or representative, that do not appear in the contract, and made a part thereof either in printing or writing.”
This contract was signed by Davis and Rankin as parties of first part, and the appellees, as subscribers, each signed the contract under this heading:
‘•NAME OF SUBSCRIBER. [ NO. SHARES. | AM°m^RP0mm01U” ^rER
Following each name under its appropriate heading is set out the number of shares subscribed by each and the amount of stock to be issued to each after the incorporation; the number of shares subscribed by any one person did not exceed two, and the amount of the capital stock subscribed by any one person did not exceed $200.
The appellees each demurred separately and severally to the complaint, assigning as a cause of demurrer that it did not state facts sufficient to constitute a cause of action against them or either of them. This demurrer was overruled, to which ruling the appellees each severally excepted.
The appellee Rogers answered separately, the others jointly. The appellant moved to strike out certain parar graphs of the answers, which motion being overruled, it then demurred to them, which demurrer was overruled. The appellant then replied, and the cause was submitted to a jury for trial, which at the request of the parties returned a special verdict. The appellant then, in their order, filed a motion for a venire de novo, a motion for a new trial, a motion for judgment in its favor, as against all of the defendants, and a motion for judgment against the defendant Rogers alone. All of which motions were overruled. The court then sustained appellees’ motion for judgment in their favor on
In the natural order the cross error first requires consideration, for if the appellant has not stated a cause of action against the appellees it may be wholly immaterial whether or not the trial court committed any error in the subsequent proceedings. Palmer v. Logansport, etc., Gravel Road Co., 108 Ind. 137; Ice v. Ball, 102 Ind. 42.
The well settled rule is that a pleading must proceed upon a single definite theory; the cause must be tried and judgment pronounced upon the theory adopted by the pleader. The complaint in this case clearly proceeds upon the theory that the contract declared upon is the joint contract of all the appellees and not the several contract. of each; that the appellees are jointly, and not severally, liable. This court has recently had occasion to construe a contract identical in legal effect to the one now before us, and we then decided that such contract was the several contract of each subscriber. We still adhere to that decision, and hold that the contract in suit is several only. Davis and Rankin, etc., Co. v. Hillsboro Creamery Co., 10 Ind. App. 42; Davis and Rankin, etc. Co. v. Barber, 51 Fed. Rep. 148; Frost v. Williams, 50 N. W. Rep. 964; Davis v. Belford, 70 Mich. 120; Gibbons v. Grinsel, 48 N. W. Rep. 255; Price v. Grand Rapids, etc., R. R. Co., 18 Ind. 137; Landwerlen v. Wheeler, 106 Ind. 523.
We are aware that there are courts of high authority which take an opposite view of such contracts. Davis v. Shafer, 50 Fed. Rep. 764. But we think the weight of authority is the other- way.
The demurrers to the complaint should have been sustained. The complaint being bad, the answers were
When an insufficient complaint is assailed by demurrer, for want of facts, and the demurrer is overruled, such ruling is to the prejudice of the demurring party. If the cause thereafter proceed to trial, and the defendant have judgment from which the plaintiff appeals, the general rule is that an appellate court will treat all errors made subsequently to the ruling on demurrer as wholly immaterial, and affirm the judgment. But there are exceptions to this rule. Where the complaint is defective in a matter of form only, the appellate court may reverse the cause at the costs of the appellant, with leave to amend. A party ought not to be deprived of a substantial right through a mere inadvertence in pleading. Elliott’s App. Proc., section 416. McCole v. Loehr, 79 Ind. 430; Goodman v. Niblack, 102 U. S. 556; Town of Monticello v. Kennard, 7 Ind. App. 135.
But if the complaint be defective in matter of substance; that is, if the amendment required to make it good be one that changes the character or theory of the action, then a reversal will not be ordered. The complaint before us proceeds upon the theory that there is a joint liability against all of the defendants. It can be amended only so as to proceed against the defendants upon a several contractor several liability. If the defendants, or any one of them, are severally liable they should be sued severally and not jointly. This we think would be a substantial departure from the nature and theory of the complaint. Even if we should be in error in this
Judgment affirmed at the costs of appellant.
