87 Ind. 369 | Ind. | 1882
Action by Hiram Gardner against Samuel W. Dodge and Eden H. Fisher upon a promissory note executed by them and one William Dixon, since deceased, for the sum of fifteen hundred dollars, dated the 30th day of December, 1879, and payable at the residence of the said Gardner one day after date, with eight per cent, interest. A copy of the note was filed with, and made a part of, the complaint.
The defendants both appeared to the action and answered separately. Fisher also filed a cross complaint, alleging that, the note in the complaint mentioned was executed by him and one William Dixon under the circumstances, and upon the-following sole consideration, that is to say: The defendant-Dodge was, in the summer of 1879, the owner of lots known as one (1) and two (2), in Rome City, in Noble county, and during that summer formed the plan of erecting a hotel building upon those lots; that not having sufficient means to erect and complete the proposed building, he applied to the plaintiff to advance him the amount of money necessary to enable him to-proceed with the erection and completion of the same, such amount to be secured by a mortgage on the lots and building;: that the plaintiff thereupon agreed to advance the requisite-amount of money, to be treated as a loan to the said Dodge, but with the understanding that the money should be placed-
“ We, the undersigned, agree that a certain note dated December 30th, 1879, and signed by William Dixon, Samuel W. Dodge and Eden H. Fisher, for fifteen hundred dollars, and made payable to Hiram Gardner, at the rate of eight per cent., and payable at the residence of said Gardner: Now the said Fisher and Dixon are to expend this sum of money on the building now being built, situate upon lots Nos. 1 and 2, in Rome City, Ind. When the money is so expended, I, the said Hiram Gardner*, am to deliver up to the said Fisher and Dixon this note described, and am to take a mortgage on said building to secure the same.
(Signed) “Hiram Gardner.
“ Eden H. Fisher.
“Wm. Dixon.”
That said sum of fifteen hundred dollars was expended by him, the said Fisher, and the said Dixon for labor perfoi’med and material used in the erection of said hotel building; that
The plaintiff demurred to Fisher’s cross complaint:
1. For defect of parties plaintiffs.
2. For defect of parties defendants.
3. For want of sufficient facts to constitute a cause of action.
The court nevertheless held the cross complaint to be sufficient upon demurrer. The plaintiff then answered to the cross complaint in two paragraphs: First. Setting up special matter in defence. Second. In general denial.
The first paragragh averred that, at the time of the execution of the contract set out in the cross complaint the lots and building referred to were encumbered by a prior mortgage to one Charity D. Hale for $3,500,00, and that one Lucius N. Reed had performe 1 labor and furnished material for said building to the amount of $800.00, under a contract made in October of that year, for" which he was entitled to a mechanic’s lien under the laws of the State; that $700.00 of the prior liens on said lots was for unpaid purchase-money due thereon; that at and prior to the time of making the contract set up in the cross complaint Fisher and Dixon were the owners of large quantities of real estate in and adjacent to said village of Rome City, which was likely to bo enhanced in value by the erection of a hotel in that village; that the said Fisher and Dixon urged him, the plaintiff, to loan said sum of $1,500.00 to Dodge, to enable him to complete the hotel building, representing that said sum would complete the building and that the prior mortgage to Charity D. Hale should be satisfied and released before the time would arrive
Fisher demurred to the first paragraph of answer to his cross complaint, and the court sustained his demurrer. The plaintiff thereupon dismissed his action, and also withdrew his answer in general denial of the cross complaint, and, declining to plead further, final judgment was rendered against him upon the cross complaint, requiring him to deliver up the note upon which his action was brought to be cancelled, and for full costs.
The appellant assigns errors upon the overruling of his demurrer to the cross complaint, and upon the sustaining of the appellee’s demurrer to the first paragraph of his answer to that complaint, as herein above stated.
The argument against the sufficiency of the cross complaint is that both Dodge and Dixon ought to have been made parties to it, or that some lawful excuse should have been given for
The decided cases in this State go to the extent of holding that ,a demurrer for defect of parties must specify the particular omission which constitutes the alleged defect, in analogy to a plea in abatement which must furnish facts sufficient to enable the plaintiff to obtain a better writ. Fink v. Maples, 15 Ind. 297; Durham v. Bischof, 47 Ind. 211; Leedy v. Nash, 67 Ind. 311.
The case of Allen v. Jerauld, 31 Ind. 372, is quoted as having recognized a different rule, but we do not so construe the ■opinion of the court in that case. A demurrer for an alleged defect of parties had been sustained in that action, but the name of the party who ought to have been joined was not 'Specified in the demurrer. Without deciding whether the demurrer was sufficiently specific, the court affirmed the judgment upon the theory that the record, taken as an entirety, •disclosed that no injustice had been done to the appellant in holding the complaint bad upon demurrer.
While there may have been, and probably was, a defect of parties to the cross complaint in this case, the demurrer, failing to specify who was improperly omitted as plaintiff and who as defendant, raised no question as to parties, either plaintiff or defendant.
While it is true that a cross complaint must be substantially sufficient to maintain an action in favor of the cross complainant, independently of the averments of the. complaint, yet in matters of mere description it may refer to and adopt some, and sometimes even many, of the allegations of the «complaint, and this is particularly the ease as to written in
We, however, know of no rule of practice which requires a copy of a note to be filed with the complaint, where the object of the action is simply to have the note delivered up and cancelled. In such an action no judgment is demanded upon the note, and the note itself is presumably in the possession of the adverse party. The relief demanded being the reclamation or recovery of the note, a proper description of the instrument is all that is necessary, the proceeding being, in that respect, analogous to an action for the recovery of a specific, article of personal property.
The cross complaint appears to us to have been sufficient upon demurrer.
There was nothing alleged in the special paragraph of answer, from which we can infer that the representations made by Fisher and Dixon, as an inducement to the appellant to make a loan to Dodge, were of a character upon which the-plaintiff had a right to rely, or that Fisher and Dixon had such an interest in, or control over, the lots and hotel building as made them responsible for Dodge’s mismanagement andi extravagance 'in the erection of that building.
The mutual obligations of the written contract set up in the-cross complaint were very simple indeed: Fisher and Dixon bound-themselves to expend the money for which they had made themselves responsible upon the hotel building, and the’ appellant agreed that when the money should be so expended he would take a mortgage upon the property and surrender the note. No limitation upon the discretion of Fisher and Dixon in expending the money was imposed. There was no stipulation, either express or implied, that the property should be free from prior encumbrances, or that the mortgage winch.
There was, therefore, nothing shown by the special paragraph of answer which could have been rightfully construed as exonerating the appellant from his obligation to surrender the note when'the money had been expended upon the hotel. The demurrer to that paragraph of answer was, in consequence,, correctly sustained.
The judgment is affirmed, with costs.