49 Ind. 165 | Ind. | 1874
This was an action upon a promissory note executed by the appellants and payable to the appellee.
The answer was in one paragraph, by way of set-off. It •averred that the note sued on was made by Robert Sanford, as principal, and by Henry Sanford, as surety; that the plaintiff was indebted to Robert in the sum of two hundred dollars, for money paid by said Robert to plaintiff upon a parol executory contract for the sale of certain real estate by plaintiff, which she owned in' her own right, to said Robert; that the plaintiff had annulled the agreement and refused to convey, and had invested the money so paid to her in the purchase of lands in Iowa for her own separate use, and had refused to repay the money so paid to her on said contract.
There was a reply in three paragraphs :
1. That prior to the institution of this suit, the said alleged .-cause of action mentioned in the answer of defendants, and all
And for a second and further reply in this behalf, the said plaintiff avers, that at and before the alleged contract and agreement to sell the lands mentioned in the answer were made, and at and before the payment to her of said two hundred dollars, she, the said plaintiff, was a married woman, and was the wife of Charles Wood, and she has remained the wife of said Wood from thence hitherto.
And for a third and further reply in this behalf, the said plaintiff avers, that long before the happening of the matters and things in the answer mentioned, and for more than twenty years last past, she has been the wife of one Charles Wood,. and during all the time aforesaid down to the present time, she has been under coverture; and she avers that after having received the said sum of two hundred dollars, she bought'.
Demurrers were overruled to each paragraph of the reply, and this ruling is assigned for error.
Three objections are urged to the first paragraph of the reply:
1. That it does not appear that the right of the appellee to retain the two hundred dollars after the rescission of the contract was submitted to the arbitrators, but only her rights on the theory that the contract was still in force.
"We think the objection is untenable. The reply says, that “ all and singular the rights and liabilities of the plaintiff and defendant Robert Sanford, growing out of, or relating to, said alleged purchase and sale of real estate in the answer mentioned, were,” etc.
2. That the only award made was by the umpire, when by the agreement the decision of the umpire and one of the arbitrators was required.
The decision of the umpire was all that was required. If one or both of the arbitrators had agreed with him in his decision, it would still have been the decision of the umpire. Kile v. Chapin, 9 Ind. 150; Baker v. Farmbrough, 43 Ind. 240.
3. The third objection is, that a copy of the award was not filed with and made a part of the reply.
It was held, in Hays v. Miller, 12 Ind. 187, that, in a suit upon an award, a copy of such award should be filed with the complaint. It is, however, contended by counsel for appellee, that an award is in the nature of a judgment, and that, under the ruling in Lytle v. Lytle, 37 Ind. 281, and Brooks v. Harris, 41 Ind., 390, it was not necessary to file a copy. We do not think an award comes within the rule laid down in the above cases.
The second and third paragraphs present the same question, and that is, whether upon the facts of the case there is any liability against the appellee, connected with and growing out of the parol executory contract for the sale of real estate. The money advanced to the appellee upon such contract cannot be a valid set-off, unless it could have been recovered in a direct action by Robert Sanford against the appellee. Curran v. Curran, 40 Ind. 473.
A set-off consists of matter arising out of debt, duty, or contract. At the time of making the contract, the appellee was a married woman, and might have conveyed the property by her husband joining with her. The question as to when and under what circumstances a married woman may create a lien upon her separate real property is not before us, and we decide nothing in reference thereto. The question is, whether there is a personal liability against the appellee. If the appellee could have rendered herself liable by an express contract, then there may be an implied' obligation. It is well settled, by repeated decisions of this court, that the appellee would not have been liable if she had given her note, and had thereby expressly agreed to pay the money so advanced to her. Johnson v. Tutewiler, 35 Ind. 353; Hasheagen v. Specker, 36 Ind. 413; Black v. Rogers, 36 Ind. 420; Moreau v. Branson, 37 Ind. 195 ; Cook v. Walton, 38 Ind. 228; Capp v. Stewart, 38 Ind. 479 ; Mattox v. Hightshue, 39 Ind. 95.
In the case last cited, it was held, that one who has pur
In the present case, the agreement was void and could not have been enforced against either party. As the appellee could not have rendered herself personally liable by an express agreement to pay the money advanced to her upon such contract, there can be no implied obligation against her.
The court committed no error in overruling the demurrer to the second and third paragraphs of the reply.
Eor the error of the court in overruling the demurrer to the first paragraph of the reply, the judgment must be reversed. The evidence is not in. the record, and hence we cannot say that the finding and judgment proceeded wholly upon the second and third paragraphs.
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to sustain the demurrer to the first paragraph of the reply, and for further proceedings in accordance with this opinion.