40 Ind. App. 592 | Ind. Ct. App. | 1907
The amended complaint is in five paragraphs; the first and second being’ common counts for $970 each, the first for money loaned and advanced by appellant to appellee, July 30, 1901, alleging demand for repayment August 9, 1901, and the second for money laid out and expended for the use of the appellee on July 30, 1901, for which payment was demanded August 9, 1901. The third, fourth and fifth paragraphs each set out the facts leading up to the issuing of a draft upon which each is based. A demurrer for want of facts to each of the five paragraphs was overruled. The fourth paragraph embraces practically the averments of the third and fifth, and, after alleging the corporate character of plaintiff, that its business is banking, and that defendant is a fruit merchant, residing and doing business in Terre Haute, sets out, as a special promise by defendant to plaintiff, the written agreement (exhibit A) to pay, when presented, all drafts with bills of lading attached, drawn on the defendant by H. K. Pratt & Sons, for all cars of fruit defendant might authorize H. K. Pratt & Sons to purchase for spot cash for defendant’s account, and to j)'ay all such drafts covering such purchases without recourse or delay, and alleges that on July 22, 1901, defendant, by telegraph, authorized H. K. Pratt & Sons to purchase for him, for spot cash, a car-load of lemons; that, pursuant to such authority, H. K Pratt & Sons did, on July 23, 1901, purchase for defendant, for $970.50 spot cash, a car-load of lemons, and on July 26, 1901, delivered it to the Southern California Railway Company, to be transported to defendant at Terre 'Haute, Indiana, and took from the railway company a bill of lading naming H. K. Pratt & Sons as both consignor and consignee, but containing directions to notify defendant of the arrival of the car; that II. K. Pratt
Defendant answered in three paragraphs, each addressed to each of plaintiff’s five paragraphs of amended complaint. The first and second were withdrawn. The third paragraph of answer is a plea of res adjudicata by reason of a former action begun and determined in the Superior Court of Yigo County prior to the commencement of the present action. In this plea the various steps taken in the former action are specifically set forth, showing the filing of the complaint by appellant, demurrer to same by appellee, the sustaining thereof, filing of the amended complaint, demurrer thereto, overruling thereof, motion by appellee to require appellant to make the amended complaint more specific, the ruling' of the court sustaining such motion, the filing by appellant of a second amended complaint, appellee’s demurrer thereto for want of facts, the sustaining of the same, appellant’s refusal to amend its complaint or plead further and election to abide by said demurrer, and the rendition of judgment that appellant take nothing, and that appellee recover his costs. The various complaints and amended complaints are set out in full. The following is a copy of exhibit A, filed with the third, fourth and fifth paragraphs of the present action and with the amended complaint in the former action;
*595 ‘ ‘ Terre Haute, Indiana, 12-28-1900.
First National Bank,
Redlands, California.
Gentlemen:
I guarantee to pay, when presented, all drafts, bills of lading attached, drawn on us by H. K. Pratt & Sons for all cars of fruit we may authorize them to purchase for spot cash for our account.
We authorize them to inspect, buy, and ship at our risk, all spot cash orders, and drafts covering such purchases will be paid without recourse or delay.
We well understand that any benefits derived from these terms come to us and our money pays for the same.
Yours truly,
Charles H. Goldsmith.”
Judgment reversed, with instructions to sustain the appellant’s demurrer to the third paragraph of appellee’s answer.