25 Ind. App. 71 | Ind. Ct. App. | 1899
—Appellant was plaintiff below and brought its action against appellee Orr and others to foreclose and enforce a lien for certain gravel-road certificates held by it as assignee. The cause was put at issue, and trial was had by the court, resulting in a general finding and judgment agaipst appellant on its complaint and in favor of appellee Orr on his cross-complaint. The errors assigned question certain adverse rulings to appellant, in this: (1) The overruling of appellant’s demurrer to the cross-complaint of appellee Orr; (2) the overruling of appellant’s demurrer to the second paragraph of the separate answer of appellee Curran; (3) the overruling of appellant’s demurrer to the fourth paragraph of the separate answer of appellee Cur-ran; (4) the sustaining of the demurrer of appellee Orr to the second paragraph of reply to the second and amended
While these several paragraphs of pleading are voluminous, the questions at issue may be briefly stated. The three paragraphs of complaint are identical, except that they are each based on different certificates and describe different tracts of real estate, and a statement of the facts charged in one will suffice for all. The complaint avers the filing of a petition in the commissioners’ court, praying for the improvement, grading, etc., of a certain described highway; that the board of commissioners duly found that the requisite number of petitioners whose lands were within two miles of the proposed improvement had signed the petition; that the board thereupon appointed viewers, as required by statute; that they were directed by the board to proceed to examine, view, lay out, and straighten the road to be improved, and make their report to the board at a time fixed in the order appointing them; that the board also appointed an engineer; that said viewers were duly qualified, and filed their report; that said proposed improvement was found by said board to be of public utility; that the benefits assessed exceeded the expenses and damages, and it was ordered and so entered of record that said improvement be made. It is also averred that one Samuel Merritt was appointed superintendent to superintend the proposed work; that as such superintendent he executed his bond to the approval of said board; that he was duly qualified and entered upon the duties of his said office. It is then alleged that said road was constructed; that appellees’ lands, describing them,
The cross-complaint avers, in substance, the same facts as set out in the complaint as to the petition and proceedings before the board of commissioners, the assessment of his lands, the issuing of the certificates sued on, and their assignment to appellant. It is then charged that said certificates have been fully paid by the appellee in the follow
The first paragraph of appellee Orr’s answer was a general denial. In the second paragraph of answer appellee simply avers payment of the certificates sued on, without describing the manner or stating the time of payment. In the third paragraph appellee admits the construction and completion of the road, the assessments made against his lands, and the issuance of the certificates, but denies the assignment to appellant. The amended fourth paragraph
Appellant’s answer to the cross-complaint was in two parag’raphs, the first of which was a general denial. In the second paragraph it is averred that appellant purchased the certificates sued on and paid a valuable consideration therefor before their maturity, and without notice of the facts stated in the cross-complaint; that such purchase was made on the — day of-, 1886; that ever since appellant has been engaged in the banking business in the city of Frankfort, Indiana, and has known the cross-complainant intimately all of said time; that it has had possession and has been the owner of said certificates since their purchase; that during said time appellant’s president, cashier, and other officers have frequently and at divers times, since the maturity of the first coupon, notified the cross-complainant that it was the owner of the certificates; notified him to call at its office and pay the same, and, since the maturity of the last of said certificates, appellant, in the due course of mail, has frequently demanded of appellee to call at its office and pay said certificates. It is further alleged that appellee frequently called at appellant’s office, and conversed with its officers within the past ten years in reference to said certificates, hut at no time did he ever claim that any portion of them had been paid; that frequently during said last ten years appellee promised and agreed with appellant to pay the same; that he had frequently and at various times begged and requested appellant to extend the time of the payment and give him an opportunity to pay the same without suit; that appellant has threatened suit against appellee on said certificates, and he called at appellant’s office and begged appellant not to enter suit, but to give him further time and that he would pay the same; that on kfay 23, 1891, appellee called at appellant’s bank’ and paid on
Appellant replied to the second paragraph of the separate answer and the amended fourth paragraph of appellee’s separate answer, in two paragraphs. The first was a general denial, and the second sets up the same facts as alleged in the second paragraph of answer to the cross-complaint. A demurrer for want of facts was sustained to the second paragraph of answer to the cross-complaint and to the second paragraph of reply to the second and amended fourth paragraphs of the separate answer of appellee Orr. After these rulings appellant filed its third paragraph of reply to the second and amended fourth paragraphs of the separate answer of appellee Orr. These paragraphs seek to state facts constituting an estoppel in pais, and are similar to the preceding paragraphs of a like character, and differ from them in that the facts relied upon are set out more fully and with greater particularity. Appellant averred in these paragraphs that the conduct, acts, words, and promises of appellee were intended to and did,mislead it, by which its right of action against Merritt was postponed until the statute of limitations had run against it, and until after his death, and left it without remedy except its right to enforce its lien, etc. A demurrer to each of them was sustained. There is no cross-error assigned. As the various questions presented for decision may arise upon a retrial of the cause in case of reversal, it will be necessary for us to decide each of them, and we will take them up in the order in which counsel.for appellant has presented them.
It is urged that the second paragraph of appellee’s answer is bad. In this paragraph appellee admits the construction of the gravel road, the assessments against his lands, etc.,
The reason for the rule that a plea of payment should aver that payment was made before the commencement of the action is based upon the fact that to constitute a complete defense the payment must have been made before the plaintiff sought his remedy at law. If payment is made after suit is brought, it does not go in bar of the action, but only in mitigation of damages, unless it appears that costs accrued to the time of payment have been included in the payment, for the general rule prevails that a plaintiff who successfully maintains his action shall recover costs.
Works’ Practice and Pleading, at §596, says: “Payment made after the suit is ^brought cannot be pleaded in bar of the action. It is and has been held that such payment may be proved in mitigation of damages, But the defendant may plead payment of the debt after the suit is brought, not in bar of the action, but in bar of the further maintenance of the action.” See Bischoff v. Lucas, 6 Ind. 26; Bank v. Brackett, 4 N. H. 557; Herod v. Snyder, 61 Ind. 453.
(2) The second paragraph of answer is bad for the additional reason that it fails to allege that the payment was made before the certificates were assigned to appellant, and before notice to appellee of such assignment. In this connection it is important to look at and determine the force of
The amended fourth paragraph of answer, it seems to us, is bad. This paragraph of answer is a special plea of payment, wherein the facts relied upon constituting payment arc set out. Appellee Orr there relies upon an alleged contract with the contractor for the construction of that part of the road abutting on his lands, that he would furnish a certain airiount of gravel and perform certain labor, which was to be applied in discharge of his assessments. The answer avers that this contract was made in 1886, but fails to specify any particular date. It further avers that appel
In Mobley v. Ryan, 14 Ill. 51, 56 Am. Dec. 488, it was held that if a debt is evidenced by a non-negotiable instrument, as a bond, and the instrument is not produced when the payment is made, such payment is made at the risk of the payor, and if it turn out that the instrument has been assigned and is held at the time by another party, the payment is not a valid one. In this case appellee permitted these certificates to remain outstanding and uncanceled for ten years after, he alleges, he had paid them. He was bound to know that these certificates were issued, for the law declares it the duty of the superintendent to issue them, and he is presumed to know the law. He is further chargeable with the "lino wledge that the certificates were assignable, and that the superintendent could negotiate and sell them at par, as was done in this case. Yet appellee remains
The authorities cited in support of our conclusion as to the second paragraph of answer apply with equal and even with stronger force here, and with those here cited lead us to hold that the court below erred in overruling the demurrer to the amended fourth paragraph of answer.
As to the first error assigned, the overruling of appellant’s demurrer to the cross-complaint of appellee Orr, it is sufficient to say that the facts charged therein are the same as those set up in the amended fourth paragraph of answer. The only material difference between the two is that in the cross-complaint affirmative relief is sought, while in the amended fourth paragraph of answer the facts are pleaded in bar of appellant’s right of action. While other objections are urged to the sufficiency of the cross-complaint, those made to the amended fourth paragraph of answer, and which we have already discussed, are applicable to it, and upon the same reasoning and upon the same authorities we must hold the cross-complaint bad as against a demurrer for want of facts, and that it was error to overrule a demurrer to it.
We next come to a consideration of the fourth, fifth, sixth, and seventh specifications of the assignment of errors. The fourth and sixth challenge the action of the court in sustaining appellee’s demurrer to the second paragraph of reply to the second and amended fourth paragraphs of the answer of appellee Orr, and also the sustaining of the appellee’s demurrer to the third paragraph of reply. The fifth and seventh assail the action of the court in sustaining the appellee’s demurrer to the second and third paragraphs of appellant’s answer to the cross-complaint. These several pleadings are drawn upon substantially the same facts, and
In the former part of this opinion we have given a resume of these several pleadings, and a repetition of them would be useless. Before considering the sufficiency of the several paragraphs, it is important to understand what is ordinarily required to constitute an estoppel in pais. Fortunately this question has been fully adjudicated in this State, and the authorities are uniform. To constitute an estoppel in pais, the following elements must appeal, viz.: (1) A representation or concealment of material facts; (2) the representation must have been made with a knowledge of the facts; (3) the party to whom the representation was made must have been ignorant of the truth of the matter; (4) the representations must have been made with the intention that the other party should act upon it, and (5) the other party must have been induced thereby to act. Roberts v. Abbott, 127 Ind. 83 ; Kuriger v. Joest, 22 Ind. App. 633. (a) Representation or concealment of material facts. It must be conceded that these pleadings do not show any representation of the material facts, but it is to be remembered that silence, where it is the duty of the party to speak, is equivalent to concealment. Studdard v. Lemmond, 48 Ga. 100; Maryland, etc., Co. v. Kimmel, 87 Ind. 560; Jeneson v. Jeneson, 66 Ill. 259; Griffin v. Nichols, 51 Mich. 575, 17 N. W. 63; Niven v. Belknap, 2 Johns. (N. Y.) 573; Cady v. Owen, 34 Vt. 598; Wheeler v. New Brunswick, etc., R. Co., 115 U. S. 29, 5 Sup. Ct. 1061. If, therefore, the first element of estoppel is present, it must rest upon concealment of material facts, or silence, which, in law, is concealment, and it must appear that it was the duty of the appellee to speak. Appellee knew that appellant had purchased, was the owner and holder of, and had in its possession the certificates in suit. He knew that appellant believed that it held against his land a valid and subsisting
There is a long line of cases which establishes the rule that a person, by admissions, may be estopped from pleading forgery, and of the many cases so holding we cite the following: Henry v. Heeb, 114 Ind. 275, 5 Am. St. 613; Lewis v. Hodapp, 14 Ind. App. 111; Shisler v. Vandike, 92 Pa. St. 447; McHugh v. County of Schuylkill, 67 Pa. St. 391; Workman v. Wright, 33 Ohio St. 405; Owsley v. Philips, 78 Ky. 517; 2 Randolph on Com. Paper 629. Admissions,
The supreme court of Texas, in the case of Weistein v. Bank, 69 Tex. 38, 6 S. W. 171, has stated the rule as follows : “It has been held by this court that when one party has been prevented or induced by the conduct and representations of another from taking prompt action for the collection of his debt, that this is such a change in his position for the worse as to meet the requirement of the law in order to create an estoppel,” citing as authority, Schwarz v. Bank, 67 Tex. 217, 2 S. W. 865.
Herman on Estoppel, Vol. 2, §780, says: “It is not necessary that a party should act affirmatively upon a declaration to create an estoppel. If he had acted not in reliance upon it, but has means in his power to retrieve his position, and, relying upon the statement and in consequence of it he refrains from using these means, the estoppel will be enforced for his benefit.”
It has been held that a party may be concluded by inferences which naturally arise from his conduct as well as by express words. Maxon v. Lane, 124 Ind. 592; Irvine v. Scott, 85 Ky. 260, 3 S. W. 163; Pisen v. Brown, 73 Tex. 135, 10 S. W. 661. See, also Wisehart v. Hedrick, 118 Ind. 341; May v. Council (Iowa), 39 N. W. 879; Wise v. Newatney, 26 Neb. 88, 42 N. W. 339.
The question now under discussion was before this court in Kuriger v. Joest, 22 Ind. App. 663, and many authorities collected bearing upon the point in issue. The conclusion reached in that case, and fully sustained by the authorities, was in harmony with the position assumed by the appellant here, and we content ourselves by referring to that case without further citations to, or quotations from, the authorities.
From the great weight of authorities and upon elementary principles as established by the text-writers, the wholesome and general rule may be deduced that where, by
Appellee has urged some objections to the complaint, but he has not put himself in a position to have his objections considered, for the reason that he has not assigned cross-error, and, hence., as to the sufficiency of the complaint, and the action of the court in overruling appellee’s demurrer thereto, no question is presented by the record.
The Supreme Court, in Anderson, etc., Assn. v. Thompson, 88 Ind. 405, has put at rest this question, wherein it was held that, where a plaintiff appeals from the judgment below, the defendant, appellee, cannot, as a rule, call in question the sufficiency of the complaint in the Supreme Court, except by the assignment of cross-error presenting that question.
Eor the reasons given above, the judgment is reversed, and the court below is directed to sustain appellant’s demurrer to the cross-complaint of appellee Orr; to sustain appellant’s demurrer to the second and amended fourth paragraphs of the answer of appellee Orr; to overrule the demurrer to the amended fourth paragraph of the separate answer of Orr; to overrule the demurrer to the second para