95 Ind. 278 | Ind. | 1884
It is alleged in the first paragraph of the appellee’s complaint that appellant undertook to solicit subscriptions for the purpose of aiding in erecting a church edifice; that he agreed to head the list with a subscription- of $200, and that he did sign the following agreement: “We, the undersigned, agree to pay the sum set opposite our respective names to the trustees of the Church of Christ, in the city of
The agreement on which the complaint is founded fixes the time of payment of the appellant’s subscription, and the right to demand payment did not depend upon the completion or non-completion of the house of worship. The subscription was payable at the dates specified, and the complaint would undoubtedly have been sufficient if it had not made a single statement concerning the completion of the building. The question, then, is whether the statement concerning the erection of the building makes the pleading bad.
The contract in cases such as this is a peculiar one. The consideration of the contract is not a promise on the part of the religious corporation to build a place of worship, for no such promise is averred, but the consideration is the mutual promises of the respective subscribers, each with the other. In speaking of a subscription similar to the present, the court said, in Peirce v. Ruley, 5 Ind. 69, that “ the real consideration for his promise is the promise which others have already made, or which he expects them to make, to contribute to the same object.” Subsequent cases fully adopt and enforce this
It follows that the complaint stated the true consideration, and showed that it was yielded when it averred that others had been induced to promise money on the faith of the appellant’s undertaking, and thus a cause of action was stated. The building of the church edifice was not a condition precedent to a recovery, and it was not necessary to aver it. This is decided in Northwestern Conference, etc., v. Myers, supra, and seems free from doubt on principle.
• The case of Irwin v. Lee, 34 Ind. 319, is plainly distinguishable from the present, for there the consideration on the part of one of the parties for the promise of the other was an agreement to do a direct and specific thing. Here, the, person for whose benefit the subscription was made does not enter into any agreement at all. This is also true of the case of Gillum v. Dennis, 4 Ind. 417. If the church trustees had bound themselves by any agreement, we should have a very different case, but, as we have seen, there is no agreement of any kind on their part.
The time fixed for performance was a definite one, and payment did not depend upon the completion of the building. The rule, even where the promise to perform is directly from one party to the other, is thus stated in an elementary treatise : “ Where the time fixed for payment is to happen or may happen before the time fixed for performance, an action may be brought for the money (or other consideration) before the performance.” 1 Whart. Con., section 582.
It is an elementary rule of pleading that surplusage does not vitiate a complaint or declaration, and the allegation in the present complaint on the subject of the building is mere surplusage, for a cause of action is stated without it. If the allegation had gone so far as to show a complete defence, we should have been confronted by an altogether different ques
The second paragraph of the complaint contains an averment that the building was erected, and shows also the contract and its consideration, the demand for the money and its non-payment, and avers that the appellant was one of the trustees of the church. We regard it as good.
The third and fourth paragraphs of the answer of appellant were amended after a demurrer had been sustained, and there was, therefore, a waiver of the exceptions taken to the ruling on the original paragraphs.
The ruling on the demurrer to the first paragraph of the answer is not discussed in the brief, and we, therefore, treat the specification of error founded on that ruling as waived.
The only remaining question which requires attention is that arising on the ruling on the demurrer to the fifth paragraph of the answer. This paragraph is addressed to the entire complaint, and unless it can be regarded as an answer to both paragraphs of that pleading, it must be deemed insufficient.
This paragraph of the answer, in its main tenor and drift, is a denial that there was any delivery of the instrument sued on, and if it is to be regarded simply as an answer denying the delivery of the contract, there was no error in sustaining the demurrer, because there were other paragraphs under which evidence showing that there was no delivery was admissible. It is abundantly settled that delivery is part of the execution of an instrument, and that a plea denying that the instrument was executed admits evidence that there was no delivery. Our cases are all to the effect that the delivery of an instrument is as much a part of the execution as the signing.
The answer, however, asserts that the building erected was not forty by sixty feet in size, as provided in the contract, but that its dimensions were only thirty-six by fifty-four feet; but
We are of opinion, however, that the affirmative part .of the paragraph of the answer is not entitled to consideration. It was said, in Kimble v. Christie, 55 Ind. 140, that the character of a pleading “must be determined from the general scope of its averments,” and many cases have reiterated this doctrine. Johnston v. Griest, 85 Ind. 503; Trippe v. Huncheon, 82 Ind. 307; Richardson v. Snider, 72 Ind. 425; S. C., 37 Am. R. 168; Neidefer v. Chastain, 71 Ind. 363; S. C., 36 Am. R. 198; Johnston, etc., Co. v. Bartley, 81 Ind. 406; Judy v. Gilbert, 77 Ind. 96 (40 Am. R. 289); Platter v. City of Seymour, 86 Ind. 323; Mescall v. Tully, 91 Ind. 96.
In Cronlc v. Cole, 10 Ind. 485, it was held that a contract can not be confessed and denied in the same paragraph. The fifth paragraph must be regarded as an answer in denial.
It is not true that a demurrer confesses all of the allegations of the pleading to which it is addressed. Gould says: “Allegations which are impertinent, or immaterial, are not confessed, by a demurrer.” Gould Pl. (4th ed.) 439. Peyton v. Kruger, 77 Ind. 486; Platter v. City of Seymour, supra. The allegations as to the size of the building are not pertinent to the main scope of the answer, and can not be regarded as confessed by the demurrer. Judgment affirmed.