26 Ind. 269 | Ind. | 1866
This was a suit by Norton against Hyer, the appellant, and McClellan, on an instrument in writing, as follows: ■
“$550. Franklin, Indiana, September 15th, 1865.
• “On or before the 1st day of January next, I promise to pay William C. Norton the sum-of five hundred and fifty dollars, value received, without relief from valuation or appraisement laws. Which said payment is to be made upon this express condition and stipulation, to-wit: that there shall be a credit allowed on said note of a sum equal to half of the • amount of the liabilities of the co-partnership of Hyer and Norton, existing at and up to this date.
(Signed) “G-. J. Hyer.
“IT. L. McClellan, Surety.”
The complaint describes the instrument as a promissory note for the payment of the sum of five hundred and fifty dollars, without noticing the stipulation contained in it for a credit, otherwise than by making a copy of the instrument a part of the complaint. The defendants demurred to the complaint, because it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants excepted.
The defendants filed separate answers. Me CleUan admitted the execution of the instrument sued on, and alleged that he was only the surety of his co-defendant Hyer, who was the principal therein.
The third paragraph, after admitting the same facts as in the second, and alleging the same consideration for the note, further alleges, that the said partnership of Hyer and Norton was a continuation of a previous partnership between one Abraham Cochran ancl the defendant Hyer; that on the 22d of July, 1866, with the consent of Hyer, the plaintiff purchased the interest of said Cochran in said last mentioned firm, and contracted and agreed, in consideration of said interest, to assume and pay one equal half of all the out-standing debts and liabilities of said firm of Hyer and Cochran, the amount of which was at that time undetermined, the said Hyer and Norton agreeing to continue the old firm of Hyer and Cochran, under the name and style of Hyer and Norton; “that in furtherance and in consideration of said transfer and assignment, it was agreed by and between all of said parties, to-wit, the said Norton, Hyer and Cochran, that the firm of Hyer and Norton should assume all the liabilities and debts of the old firm of Hyer and Cochran, existing at the dissolution of that firm; that the liabilities of said firm of Hyer and Cochran, which were assumed by the new firm of Ilyer and Norton, amounting to the sum of §778 10 (a list of which is filed with and made a part of the answer) became the liabilities of the
In this paragraph, Hyer also sets up an arbitration, award and judgment thereon, in the Circuit Court, between Hyer and Norton and Cochran.
The court, on the plaintiff’s motion, and over the objection of Hyer, struck out of the third paragraph of the answer all that part of said paragraph which related to the debts and liabilities against the firm of Hyer and Cochran, existing at the date of the note, and also so much of the paragraph as related to the arbitration, award and judgment; to which ruling Hyer excepted.
The plaintiff then replied in denial of the second and third paragraphs of the answer of Hyer. ' The issues were tried by the court, by consent of the parties, without a jury. Finding for the plaintiff for $387 85. Motion for a new trial overruled, and judgment. Hyer appeals.
It appears by the record that on the 20th of March, 1866, when the judgment of the court was rendered, Hyer prayed an appeal to this court, which was granted, and he thereupon filed an appeal bond, with William H. Barnett as his surety, which was approved by the court. On the 23d of March, Barnett asked to be discharged as surety on the appeal bond, which the court granted, and then gave Hyer
The action of the court in overruling the demurrer to the complaint is the first point urged by the appellant for a reversal of the judgment. The objection urged to the complaint is, that the stipulation in the note sued on, in reference to the amount to be credited thereon, is a condition, operating as a limitation or qualification of the .contract, in the amount of money to be paid, rendering the obligation in that respect indefinite and uncertain, and that the complaint should, therefore, by proper averments, either negative the fact that there were any liabilities existing against the firm of Hyer and Norton, at the date of the note, or show the amount of such liabilities, whereby the amount due by the note could be ascertained and fixed. It is said to be a general rule of pleading that matter which should come more properly from the other side need not be stated,, unless in some instances of pleas not favored by the courts,, as a plea in estoppel, or of alien enemy; and matters in defeasance of the action need not be stated; and wherever there is a circumstance, the omission of which is to defeat the plaintiff’s right of action, prima facie well founded, whether called by the name of a proviso or a condition subsequent, it must in its nature be a matter of defense,
In this case the provision in the obligation that a credit shall be allowed of a sum equal to half of the amount of the liabilities of the co-partnership of Hyer and Norton, existing at the date of the obligation, is a limitation upon the amount to be paid, and renders it indefinite. It is in efiect a promise to pay $550, less one-half the amount of the liabilities then existing against the firm of Hyer and Norton. The amount of the liabilities referred to not being stated in the obligation, the sum promised to be paid is uncertain, and cannot be ascertained by reference to the obligation alone. This should have been aided by averments. The presumption arises from the terms of the obligation that there were liabilities to «orne amount then existing against the firm of Hyer and Norton, and the complaint should either have negatived this presumption or stated the amount of such liabilities. It does neither. It is therefore defective, and the demurrer should have been sustained.
The next question presented arises upon the action of the court below in striking out that part of Hyefs answer, in which he sets up the liability of Hyer and Cochran as existing liabilities against the firm of Hyer and Norton, at the date of the note sued on, and claims a credit on the note equal to one-half of such liabilities, and also that part of
The award, which is made a part of the answer, states the parties thereto as “ Garret J. Hyer and William C. Norton v. Abraham Cochran ,” and then proceeds thus: “ The said parties having agreed "to submit all the matters of difference between them to the arbitration and award of John T. Vawter, Gabriel M. Overstreet and Samuel P. Oyler, and that their award shall be made a rule of court in the above entitled cause, the arbitrators met and subscribed the following oath,” &c. The oath of the arbitrators is then set out, and the award proceeds: “After a full examination of the evidence we find and award that the defendant, Abraham Cochran, is indebted to the plaintiffs, Ilycr and Norton, in the sum of $38 53, and that he pay an equal half of the costs in this 'case, both in court and of this arbitration.” The arbitrators further found that on the 22d of July, 1865, Norton purchased of Cochran, and thereby became the owner of, one undivided half of all the property, stock in trade and assets of the firm of Hyer.and Cochran, and that he contracted and agreed in said purchase to assume and pay one equal half of the out-standing debts of said firm of Hyer and Cochran. They also found that certain liabilities, which are stated, were among the debts and liabilities of the firm of Hyer and Cochran, and that the individual accounts of Hyer and Cochran were to be settled and balanced on the books of said firm. It is claimed by the appellant that this award is conclusive upon the parties to the present suit of the fact that the liabilities of the firm of Hyer and Cochran, by the agreement of the parties, were assumed by and became the liabilities of the firm of Hyer and Norton; but the award does not sustain the claim. It does not assume to settle, and in truth does not settle, any matter of controversy between Hyer and Norton. It purports to be an award upon matters submitted to the arbitrators in
If this view of the case be correct, it follows that the Circuit Court ex’red ixi striking out so mxxck of' the third
The judgment is reversed, with costs, and the cause remanded to the court below, with instructions to sustain the demurrer to the complaint, and with leave to the parties to amend their pleadings.