24 Ind. App. 8 | Ind. Ct. App. | 1900
Appellant purchased an assessment roll containing a number of names of property owners, approved by the trustees of Irvington, for the construction of a sewer, and sued appellees for the amount of the assessment against them, $1.90, and to foreclose the lien.
The second paragraph of appellee’s answer alleged that, at all times before and at the time of and ever since the beginning of the action, she was, and is, ready and willing to pay the full amount of appellant’s claim, principal and interest; but that, before the commencement of the suit, appellant demanded of appellee the sum of $10.85 in payment thereof, itemizing the claim as follows: $1.90 principal, twenty-five cents interest, $8.10 “court costs and attorney’s fees”, and refused to accept any lesser amount than $4.05 in payment thereof, though at all such times- there was not due or owing in excess of $2 for principal and interest, and at such times refused the $4.05 unless upon the condition that “plaintiff or its attorney should simply note payment of said assessment upon the assessment rolls in its or his hands, and give its or his receipt therefor, thereby conditioning the acceptance of even said sum of $4.05 in payment, as aforesaid, upon the condition — contrary to the statute in such case made and provided — that the plaintiff would not make entry of the receipt of such money upon the proper public record, and thereby discharge the lien of said assessment; and this defendant now brings into court the sum of $2.05 for the use of the plaintiff, in full payment of the assessment and claims sued on in plaintiff’s, complaint herein, and being the full amount of, and more than, the principal and interest of said assessment.” The answer does not undertake to plead a tender before suit, but to plead facts showing a tender before suit would have been unavailing.
In Hoyt v. Sprague, 61 Barb. 497, a carrier refused to . deliver grain to a consignee unless the full amount of freight was paid, without any deduction for damage or short delivery, and, in holding that a tender was waived, the court said: “The true rule I take to be this: That the mere assertion, unaccompanied by any other act, of a lien greater in amount than the lienor is entitled to, will not obviate the necessity of a tender; for it may be that the right amount Avould be accepted; but when, as here, there is an absolute refusal to deliAmr up property unless a claim to which the party is not entitled is discharged, so that it appears that the lien claimant says, in effect, do what you will; tender any amount you please; unless it be the whole of my unlawful demand, I will not accept it, nor surrender your property; then the law dispenses with the idle ceremony of making a tender which the claimant, in advance, declares he will not accept, and an action may be brought immediately.”
The answer in the case at bar does not allege that any amount was ever offered appellant before suit. It is not shown what Avas done by the parties which resulted in appellant’s refusal to receive less than a certain sum. In other words, the pleading states a conclusion, and does not
It is a well settled rule of pleading that facts must be pleaded, and can not be gathered by mere conjecture from a doubtful pleading. A pleader’s conclusion may or may not be drawn from material facts. If the material facts are pleaded, the conclusion is harmless, but without the material facts it is fruitless. It can not be said that the answer states as a fact that an offer to pay any sum was made and was refused, or states facts from which it must necessarily be said that a refusal would have followed an offer to pay. These facts we can only gather by inference and conjecture, in violation of a long settled rule of pleading. Cummins v. City of Seymour, 79 Ind. 491, 41 Am. Rep. 618; Jackson School Tp. v. Farlow, 75 Ind. 118; Singer, etc., Co. v. Effinger, 79 Ind. 264; Kleyla v. Haskett, 112 Ind. 515. The demurrer to the answer should have been sustained. Judgment reversed.
Wiley, J., took no part in this decision.