132 Ind. 88 | Ind. | 1892
The appellant alleges in his complaint that the appellee is a railway corporation organized under the laws of this State; that it is the same corporation under a different name, and holding the same property as the Fort Wayne, Muncie and Cincinnati Railroad Company; that the company last named executed a mortgage on the 9th day of June, 1889, to Alfred P. Edgerton and Jesse L. Williams, trustees, to secure the payment of one million eight hundred thousand dollars, covering all the property of the company; that this mortgage was subsequently foreclosed and a sale of the property made upon the decree; that the purchasers of the property were bondholders and re-organized the company; that prior to the re-organization of the company by the purchasers at the foreclosure sale, the appellant entered into a
It is a familiar rule of pleading that specific averments control general ones. Reynolds v. Copeland, 71 Ind. 422. See cases cited Elliott’s App. Prac., section 656, p. 588, note 1. The general averment that the appellee is the same corporation as the one that entered into the contract with the appellant, gives way to the specific averments which show that the appellee is a new corporation organized by the purchasers at the foreclosure sale. There can, therefore, be no recovery upon the theory that the corporation here sued is the same as the one with which the appellant contracted.
The provision in the contract between the bondholders
We understand counsel, however, to place their right to a recovery mainly upon the ground that the facts show an equitable claim. ' Their contention is that as the new company used the building erected by their client, it must pay the debt of its predecessor. This contention can not'prevail. The old company was the debtor of the appellant, but the new did not become liable for that debt. A corporation formed by bondholders who purchase at a sale upon a decree, foreclosing the mortgage securing their bonds does not become liable for the debts of the mortgagor.
It is assumed by counsel that the appellee is liable in equity because it took possession of the appellant’s property. But this assumption is one that can not be supported. There is nothing in the complaint showing that the appellant owned the station; on the contrary, the facts stated show simply that the corporation with whom the appellant contracted, promised to pay him a designated sum of money, and for that sum became his debtor. The cases of Lake Erie, etc., R. W. Co. v. Griffin, 107 Ind. 464, Bloomfield R. R. Co. v. Grace, 112 Ind. 128, and cases of like character are not in point, for in those cases possession of the complainant’s property was taken and held by the railroad company. This case is in no respect different from that wherein one man agrees to build a house for another for which that other promises to pay a given sum, and a third person becomes the owner of the house by purchase at a sale made upon a decree foreclosing a prior mortgage. In the
As the appellant has no cause of actioji the judgment must be affirmed upon the assignment of cross-errors. See authorities cited. Elliott App. Proc, sections 417, 418.
Judgment affirmed.