50 Ind. App. 11 | Ind. Ct. App. | 1911
— This action was brought to recover $970.50, paid by appellee to IT. K. Pratt & Sons upon a draft drawn by them upon the appellant. Appellee was a corporation engaged in banking at Redlands, California, and appellant was a fruit merchant at Terre Haute, Indiana. H. K. Pratt & Sons were commission merchants at Redlands. On July 29, 1901, IT. K. Pratt & Sons made a draft on appellant for the sum of $970.50, payable to appellee, and attached it to a bill of lading for a carload of lemons. Said bill of lading showed that PI. K. Pratt & Sons were both consignors and consignees of said car, and it contained directions requiring that notice of the arrival of said car at Terre Haute be given to appellant. IT. K. Pratt & Sons indorsed said bill of lading as follows: “Deliver this B. L. to C. H. Goldsmith on payment of draft attached, PI. K. Pratt & Sons,” and delivered said bill of lading and the attached draft to appellee at its place of business. Appellee then paid to IT. TL Pratt & Sons the sum of $970.50. The authority under and by virtue of which appellee claims to have made such payment, and by virtue of which it seeks to hold appellant, is in writing as follows:
“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 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 comes to us and our money pays for the same.
Yours truly,
Charles H. Goldsmith.”
This court in its opinion on the former appeal used the following language: “It was held by the trial court that in the present action facts are set out sufficient to bind the appellee and to constitute a cause of action against him. The holding is correct. ’ ’ It thus appears that the language of the opinion indicates that the amended complaint states facts sufficient to constitute a cause of action. If it was necessary to determine this question in order to decide the question directly presented to the court for decision in that appeal, then the sufficiency of the amended complaint has been settled as the law of the case. The former appeal was prosecuted by the plaintiff to reverse a judgment rendered against it in the trial court. The record on said appeal shows the filing of the amended complaint, and also the filing of the answer thereto, and that a demurrer to such answer had been overruled. The record also shows that the plaintiff refused to reply or plead further, and judgment was rendered against it. The only error assigned was that the trial court erred in overruling the demurrer to the third paragraph of answer, and we are now called on to decide whether, in the decision of the question thus presented, it was necessary for the court to determine the question of the sufficiency of the complaint to withstand a demurrer for want of facts.
¥e therefore conclude that it was necessary for this court in the former appeal to determine the question of the sufficiency of the amended complaint to withstand a demurrer for want of facts, and that the decision of the court as to that question became the law of the case, and is controlling. We accordingly hold that the trial court committed no error in overruling the demurrers to the several paragraphs of complaint.'
Objections are pointed out to a number of instructions contained in the second series given by the court. We have examined the charge as a whole, and, in the main, it may be said that the jury was fully and fairly advised as to the law applicable to the case. But some of the instructions contain inaccuracies and misstatements of the law, and it remains to he considered whether these were so material and prejudicial to appellant as to warrant a reversal of the case.
Instruction thirteen is as follows: “If there has been any evidence introduced upon the theory that in the fruit business in California there were different terms used, one called the ‘usual terms’ and the other the ‘spot cash’ method of buying fruit, and farther disclosed that when it is bought to be inspected at its destination it is called the ‘usual terms’ and when it is bought on inspection at once in California to be paid for immediately upon inspection and delivery, it is called the ‘spot cash terms,’ and further discloses that there is a difference in the price between the two methods, the spot cash being the cheaper, then I instruct you that if the evidence in this case discloses, by. a preponderance thereof, that
What has been said in discussing the instructions we have considered, we think, disposes of the objections urged to the other instructions. Without giving to each a separate consideration, it is sufficient to say that the mistakes and inaccuracies complained of were not of such a character as would be likely to mislead the jury, and the result indicates that the jury was not misled thereby.
Judgment affirmed.
Note. — Reported in 96 N. E. 503. See, also, under (1) 3 Cyc. 401; (2) 3 Cyc. 400; (3) 31 Cyc. 128, 338; (4) 31 Cyc. 340; (5) 15 Cyc. 260; (6) 3 Cyc. 313; (7) 38 Cyc. 1787; (8) 38 Cyc. 1632; (9) 38 Cyc. 1815; (10) 20 Cyc. 1989; (11) 38 Cyc. 1640; (13) 3 Cyc. 385. As to contracts ol' guaranty, see 105 Am. St. 502. As to election of remedies, see 1 Am. St. 626; 10 Am. St. 487.