26 Ind. App. 592 | Ind. Ct. App. | 1901
This action is founded on a promissory note executed by the appellees to the Birdsall Company and indorsed by the payee to the appellant’s decedent. The complaint avers that the note is lost, and that $40 is a reasonable attorney’s fee, in connection with the usual averments in a suit upon a note.
Appellees answered jointly in five paragraphs, (1) a general denial, (2) payment, (3) that the note was executed without any consideration, (4) admitting the execution of the note, but averring that it was given in consideration of
Demurrers were overruled to the fourth and fifth paragraphs of the answer, exceptions taken and error assigned questioning the sufficiency of each of such answers.- The
The fifth paragraph is subject to the same criticism as the fourth, it failing to set out facts showing a breach of the warranty or the worthlessness of the machinery. It is not good as an answer of failure of consideration. Hardesty v. Smith, 3 Ind. 39; Myers v. Conway, 62 Ind. 474; Long v. Johnson, 15 Ind. App. 498.
The court was duly requested to instruct the jury in writing, and as shown by a bill of exceptions read to it the whole of the complaint, except the copy of the note filed as an exhibit, of which he said: “The copy of the note is as indicated in the complaint, but I shall not read that.” The answers were all read, except the copy of the written warranty filed with the fourth, which was omitted with the following remark: “To these answers is attached the warranty, which has been read in your hearing.” The replies were also read, during the reading of-which the judge said: “This is the same exhibit heretofore referred to.” None of the papers thus read was copied in the instructions, but were read from the originals with oral explanations as above set out. The action of the court in this regard constitutes reversible error. Sellers v. City of Greencastle, 134 Ind. 645; Bosworth v. Barker, 65 Ind. 595.
While it is not error to read the pleadings to the jury when properly incorporated in the instructions (Sturgeon
When the cause came on for trial, the appellees withdrew the general denial, and demanded the right to open and close, and, over appellants’ objection, did so. The appellees’ attorneys stated in open court that they conceded the loss of the note, and that $40 was a reasonable attorney’s fee. This statement, while it fully bound appellees as a matter of evidence, could have no effect to change the burden of proof as made by the pleadings. The appellee, upon the pleadings, was not entitled to open and close the case, and where the burden of proof rests must he determined from the pleadings. Boyd v. Smith, 15 Ind. App. 324. The allegation as to a reasonable attorney’s fee was affirmative, and the burden was upon appellant to establish it. Boyd v. Smith, supra; Fetters v. Muncie Nat. Bank, 34 Ind. 251, 7 Am. Rep. 225; Camp v. Brown, 48 Ind. 575; Reynolds v. Baldwin, 93 Ind. 57; Robbins v. Spencer, 121 Ind. 594. Even if the statement made in open court fixing the fee at ten per cent., if any finding was had for plaintiff, could be considered, which it can not be, it would not change the order. Camp v. Brown, supra. If the note called upon its face for a specified amount as attorney’s fee, the rule wrould be different. McCormick, etc., Co. v. Gray, 100 Ind. 285.
Iudgment reversed, with instruction to sustain demurrers to fourth and fifth paragraphs of answer, and for further proceedings not inconsistent herewith.