14 Ind. App. 331 | Ind. Ct. App. | 1896
The appellee sued and recovered judgment against the appellants for services alleged to have been rendered by him for them under a special contract in the sale of real estate. The complaint was in two paragraphs, to which the appellants filed a joint demurrer for want of facts to the entire complaint. The demurrer was overruled and a joint exception saved by the appellants to the court’s ruling. In this court the appellant, Jacob H. Harter, separately assigns as error that the complaint does not state facts sufficient to constitute a cause of action against him. ' The appellants, Austin F. Bradley, Victor M. Backus and Charles M. Cooper, “jointly and severally” assign as error: “First. That the complaint does not state facts sufficient to constitute a cause of action against them, or either of them. Second. Error of the court in overruling the demurrer of the defendants below to the complaint. ”
Where a demurrer is addressed to a complaint as an entirety, containing more than one paragraph, it should be overruled if one paragraph is good. Baker, Gdn., v. Groves, 1 Ind. App. 522; Jewett v. Honey Creek Draining Co., 39 Ind. 245; Washington Tp. v. Bonney, 45 Ind. 77; Romine v. Romine, 59 Ind. 346; City of Aurora v. Fox, 78 Ind. 1; Baddeley v. Pat
Before entering upon the trial of the cause the appellee withdrew, or dismissed as to, the second paragraph of his complaint. The second paragraph having been withdrawn, there is some doubt as to whether or not it is properly in the record on this appeal. Unless it is properly in the record we cannot determine whether or not the demurrer to the complaint was properly overruled.
The demurrer was a joint one by all of the appellants and addressed to the entire complaint, and to the ruling thereon the appellants jointly excepted. There is no joint assignment of error by all of the appellants in this, court calling in question the ruling of the lower court upon the demurrer. The rule is well settled that the assignment of errors is the appellants’ complaint, and the specifications of error must apply to and be predicated upon rulings addressed to the party or parties making the assignment. In a word, the specifications of error must apply accurately to the rulings complained of.
We will, therefore, consider the sufficiency of the complaint under the assignments made in this court that facts sufficient are not alleged to constitute a cause of action.
The rule that governs in determining the sufficiency of the facts alleged to constitute a cause of action, when their sufficiency is first attacked on appeal, is entirely different from that which is applicable when tested by a demurrer. When the sufficiency of a complaint is first questioned by an assignment in this court
In Eberhart v. Reister, 96 Ind. 478, the court says: “Many defects which a demurrer would reach are cured by a verdict. Jones v. White, 90 Ind. 255; Martin v. Holland, 87 Ind. 105; Puett v. Beard, 86 Ind. 104; Jenkins v. Rice, 84 Ind. 342; Parker v. Clayton, 72 Ind. 307; Shimer v. Bronnenburg, 18 Ind. 363.”
In the case of Noblesville Foundry and Machine Co. v. Yeaman, by Next Friend, 3 Ind. App. 521, Crumpacker, J., speaking for the court, says: “When a complaint is attacked for the first time in this court every legal intendment is summoned to its rescue, and if there is enough to bar another suit for the same cause, and no necessary averment is totally absent, the verdict will cure the delinquencies,” and in support of the holding is cited: Louisville, etc., R. W. Co. v. Spain, 61 Ind. 460; Toledo, etc., R. W. Co. v. Stevens, 63 Ind. 337; Louisville, etc., R. W. Co. v. Harrington, 92 Ind. 457; Hedrick v. Osborne & Co., 99 Ind. 143; Burkett v. Holman, supra; Orton v. Tilden, 110 Ind. 131; Du Souchet v. Dutcher, 113 Ind. 249.
It may be conceded that the adjudications are not as clear and harmonious as they should be in defining just what amendments shall be deemed to have been made, or defects in a pleading cured after verdict and judgment, but we are unwilling at this time to say that the doctrine of intendment after verdict should be carried to the extent of holding that a material fact omitted from a complaint will be assumed to have been supplied
The complaint filed by appellee reads as follows:
“Julius E. Parsons complains of Austin E. Bradley, Victor M. Backus, Charles M. Cooper and Jacob H. Harter, and says: That the defendants, Austin E.*336 Bradley, Victor M. Backus and Charles M. Cooper, are partners in the ownership of a contract with Jacob H. Harter, the exact terms of which are unknown to plaintiff, but in substance is, that the said Jacob H. Harter sold to the said Austin F. Bradley and others, certain real estate in the city of Anderson, which the said Jacob H. Harter platted into an addition known as “Englewood ” addition to the city of Anderson, Madison county, Indiana; the said Bradley, Backus and Cooper to sell the said lots in said addition, the said Harter to convey the same as sold, and receive certain of the proceeds therefrom, and when he has received the amount of the consideration from the contract of sale, from said Harter to Bradley and others, then Harter to convey the residue to said parties. He avers that the said Backus, Cooper and Bradley have had an agency and doing business in the city of Anderson in the sale of said lots, said Austin F. Bradley representing them and transacting the business for said partnership; that said parties being desirous of making sales of said lots, or trade same so that said Hartér would accept the proceeds as a part of the purchase price as aforésaid, entered into an agreement with said plaintiff, that if he would get up a trade between said defendant, and one Bichard Thornburgh, by which Harter should convey for said defendants a certain 'number of lots in Englewood to said Thornburgh, in consideration for which said Thorn-burgh would convey a certain tract of land near the city of Anderson, they would cause to be conveyed to said Parsons for his services in getting up said trade, any two lots that he would choose or select in said Englewood addition, that might be left after said Thorn-burgh had chosen the lots that he was to take in said trade.
And he further avers that said Harter became known
The gist of the complaint, if we fully understand it, is that the appellants, Bradley, Backus and Cooper, were partners in the ownership of a contract made with the appellant, Harter, the substance of which contract was that Harter sold to Bradley and others certain real estate in Anderson which Harter platted into an addition known as “Englewood;” Bradley, Backus and Cooper to sell the lots, and Harter was to make a conveyance to the purchasers for the lots sold, and when he had received a certain amount from the proceeds of the sales he was to convey the balance of the lots- to Bradley and others; that Bradley, Backus and Cooper had an office in the city of Anderson, in charge of Bradley, for the purpose of selling the lots; that they entered into an agreement with appellee, “that if he would get up a trade between said defendants (appellants) and one Richard Thornburgh, by which Harter should convey for said defendants a certain number of lots in Englewood to said Thornburgh,” in consideration of a conveyance to them of certain property owned by him, they would cause to be conveyed to appellee for his services in making such trade, “any two lots that he would choose pr select in said Englewood addition that might be left after said Thornburgh had chosen the lots that he was to take in said trade;” that appellant Harter knew of the contract between the appellee and the appellants; that the exchange between the appellants and Thornburgh was consummated, but that the appellants have failed and refused to convey to appellee the two lots selected by him, although requested so to do, etc.
From the facts alleged it is evident that the appellee could not recover the two lots unless the previous contract made between the appellant Harter on the one part, and the appellant Bradley and others on the other,
The theory of the complaint is to recover the two lots or their value, and upon this theory it is clearly insufficient against either of the appellants.
Whether or not the appellee has a right of action against the appellants, or a part of them for services rendered is not before us, and we do not undertake to decide anything pertaining to that question. What we do decide is that the facts alleged fail to show any right of action in the appellee against the appellants to recover two lots in Englewood addition, or their value. The case was tried in the court below upon the theory that appellee was entitled to recover from the appellants, either the two lots which he selected, or their value. The complaint, therefore, does not state a cause of action against the appellants, or either of them.
Judgment reversed.