128 Ind. 403 | Ind. | 1891
Lead Opinion
In March, 1884, the appellant was a minor and Edmund R. Kerstetter was his guardian. At said date said guardian sold a stock of goods belonging to said ward to Levi W. Deitch, and as part of the purchase-money said Levi W. Deitch executed to Kerstetter two promissory notes, one for two hundred and fifty dollars and one for five hundred dollars. Said notes were signed by Levi W. Deitch and Henry Deitch. In November, 1884, said Levi W. Deitch sold said stock of goods to defendants, John L. Judson and Henry Deitch. At the time of the sale Levi W. Deitch executed to said Judson and Henry Deitch a bill of sale for said stock of goods, in which it was stipulated that the consideration therefor was to be “ the payment by'Henry Deitch of one note of two hundred and fifty ($250) dollars, payable to E. R. Kerstetter, guardian; also of one note of five hundred ($500) dollars, held by E. R. Kerstetter, guardian,” etc., describing other notes; “ and the payment by John L. Judson of one note of five hundred ($500) dollars, payable to E. R. Kerstetter, guardian, and one note of two hundred and fifty ($250) dollars, payable to E. R. Kerstetter, guardian. The notes aforesaid are signed, the first by Levi W. Deitch and Henry Deitch, the second by Levi W. Deiteh
After the execution of the bill of sale containing the agreement above set out, the appellant arrived at the age of majority and settled with his guardain, and in the settlement the notes were transferred to and became the property of the appellant, and he brings this suit against the appellees on the contract in the bill of sale transferring the property to them.
The complaint is in three paragraphs. The first and third paragraphs are to recover the amount of the note given for two hundred and fifty dollars, and the second is to recover the amount of the note given for five hundred dollars.
The appellees demurred to each paragraph of the complaint, for want of facts, and for a defect of parties defendant, in that Levi W. Deitch was not made a party defendant, which demurrers were overruled, exceptions reserved, and the ruling assigned as cross-error. As the validity of the complaint is material in passing upon the errors which are to be hereafter considered, we deem it best to consider the cross-error first.
It is first urged that the complaint is bad, for the reason that the contract is a joint and several one in so far as the appellees are concerned; that the agreement is that appellee Deitch will pay certain notes, and that Judson will pay certain other notes, as stated in the first part of the contract, and that they can not be sued jointly for the notes. We do not think the contract bears the construction contended for by the counsel for the appellees. The contract contains an express agreement, on the part of both the appellees, to pay the notes, and to relieve the said Levi W. Deitch from all legal liability for the payment of the same ; while it is stip
The first is a general denial.
The appellant .demurred to each paragraph of answer except the first. The demurrer was sustained as to the second and seventh, and overruled as to the others; exceptions were reserved, and errors assigned in overruling the demurrer as to each.
The third paragraph of answer we thinks pleads a rescission of the contract before any acceptance of it by the appellant or his guardian for him, and there was no error in overruling the demurrer to it.
The fourth paragraph of answer pleads a parol agreement in contravention of the written agreement.
It is clearly bad, and the demurrer should have been sustained to it.
The fifth paragraph is in the nature of a counter-claim or cross-complaint. It alleges a mutual mistake in the contract, and seeks a reformation of the contract.
It is suggested that this paragraph is bad, for the reason that Levi W. Deitch is not a party to it, but it is not demurred to for this reason, and hence no question as to defect of parties is presented. The paragraph we think states facts sufficient to constitute a defence.
The sixth paragraph alleges misrepresentations as to the law and the necessity for a written contract, and as to the legal effect of the contract in question. The demurrer should have been sustained to it. •
The court erred in overruling the demurrer addressed to this paragraph.
The eighth paragraph of answer is addressed to the third paragraph of the complaint, and alleges that said appellee was induced by fraud to accept said bill of sale containing said contract, setting up the facts as to what the true con.tract was, and the fraudulent representations and deceit by
The facts stated in this paragraph are sufficient to entitle the defendant to a reformation of the contract, and to avoid his liability for the amount of the note. The demurrer was properly overruled.
There is no question presented as to the necessity of making Levi W. and' Henry Deitch parties to this paragraph. The paragraph is more than an answer; it seeks affirmative relief.
For the errors of the court in overruling the demurrers to the fourth and sixth paragraphs of answer the judgment must be reversed.
The other questions presented may not arise on a re-trial of the case.
Judgment reversed, at the costs of the appellees, with instructions to sustain the demurrer to the fourth and sixth paragraphs of answer.
Rehearing
On Petition for a Rehearing.
As we interpret the peculiar phraseology of the reasons given by counsel in this petition for rehearing, this rehearing is asked on account of the alleged error of the court in holding the fourth and sixth paragraphs of answer bad.
As to these paragraphs of answer in the original opinion we said:
“ The fourth paragraph of answer pleads a parol agreement in contravention of the written agreement. It is clearly bad, and the demurrer should have been sustained to it.”
We thought this statement sufficient in passing upon a paragraph of answer so clearly bad. The contract referred to is a contract for the sale of a certain stock of goods by Levi W. Deitch to Henry Deitch and Johp L. Judson. The consideration for the sale is the payment of certain notes. The
“Said Henry Deitch and said John L. Judson do well and truly agree to pay the aforesaid notes to relieve the said Levi W. Deiteh from all legal responsibility in the payment of the same. Said Levi W. Deitch does sell, convey and set over to the said Henry Deiteh and John L. Judson for their own use and purposes the above described property.”
In the contract prior to the description of the property, these words are used : “ Has bargained and sold to Henry Deitch, of Elkhart county, and State of Indiana, and to John L. Judson, of Elkhart county, and State of Indiana, the goods and chattels described as follows, to-wit: ” These are the only words of bargain and sale. It is true, in the first part of the contract there is a separate statement that each of the parties agrees to pay certain notes, describing them, but the sale by the contract is a sale to Deitch and Judson, jointly, and a joint agreement on their part to pay the notes, and save Levi W. Deitch harmless, and so far as their liability to Levi Deiteh is concerned they are each bound for the payment of all the notes and to protect and save Levi W. Deiteh harmless. There is no ambiguity in the language used. And in the fourth paragraph of answer the appellee Judson pleads a parol contract in contravention of this contract as a defence to their written contract and in avoidance of his liability. That this can not be done is too plain to admit of discussion, hence we disposed of it very briefly in the original opinion.
As to the sixth paragraph counsel discuss a different proposition from the one presented by the pleading. The question presented by the pleading is the one briefly stated and disposed of in the original opinion, and the paragraph of answer is bad.
Petition for rehearing is overruled.