Avery v. Dougherty

• Decision Date: 27 June 1885
• Docket Number: 12,186
• Citation: 2 N.E. 123,102 Ind. 443
• Parties: Avery et al. v. Dougherty
• Court: Indiana Supreme Court

2 N.E. 123

102 Ind. 443

Avery et al. v. Dougherty

No. 12,186

Supreme Court of Indiana

June 27, 1885

From the Morgan Circuit Court.

Judgment affirmed.

J. V Mitchell and J. F. Cox, for appellants.

J. H Jordan and O. Matthews, for appellee.

OPINION

Elliott, J.

In the promissory notes upon which the complaint of the appellee is founded, the description of the payee is Oliver R. Dougherty. The answer to the complaint is in two paragraphs, but, as they are substantially the same, it is only necessary to give a synopsis of one of them. It is alleged that the sole consideration of the notes was the execution of a lease by the plaintiff to the defendants Monroe and Madison Avery that in the lease the plaintiff covenanted with the defendants that they should have the peaceable, quiet, and undisturbed possession and enjoyment of the land therein described for the term of three years; that the defendants entered into the possession of the land; that prior to the time the notes sued on became due, the plaintiff wrongfully, and without the knowledge or consent of the defendants, entered upon the land, cut down and worked into saw logs and staves a great number of trees; that the plaintiff and his servants entered upon the land at seasons when the ground was soft and spongy, and also after the defendants had planted corn, with horses and wagons, and tramped and packed the ground, thereby injuring the crops of the defendants; that the plaintiff left the tops of the trees cut down by him lying on the ground where they fell; that the defendants were compelled to remove these tree tops at an expense of five hundred dollars; that by reason of the wrongful entry and unlawful acts of the plaintiff, the defendants were deprived of the possession of the demised premises and greatly damaged, to wit, in the sum of five hundred dollars.

It is alleged that Jesse Avery executed the notes as the surety of Madison and Monroe Avery. The conclusion and prayer of the answer is substantially as follows: Wherefore defendants say that the consideration of the notes has failed, and they pray that the damages so sustained by said Madison and Monroe Avery may be recouped, and they have judgment for the money paid upon the notes by them, together with all other proper relief.

The lease is not well drawn, and is evidently the work of an unskilful person, for many of the usual and appropriate provisions of a lease are absent. There is, however, enough in the instrument to fix the term, describe the property demised, and designate the amount of rent to be paid by the tenant; there are covenants on the part of the lessee to pay rent, to take care of the premises, and make repairs. There are no express covenants on the part of the lessor, nor is any right of entry reserved. Reference is made to the notes sued on; it is recited that they were given for the rent of the demised premises, and dates, amounts and times of maturity are stated. The introductory clause of the lease reads thus: "This agreement, made this 25th day of December, 1880, between Randolph Marshall, agent of Oliver Dougherty, guardian of his minor children, and Madison Avery and Monroe Avery," and the instrument is signed "Randolph V. Marshall, agent of O. R. Dougherty."

The appellee's counsel assert that the lease is executed by Marshall, and not by Dougherty, and that the allegation that it was executed by the latter is overthrown by the exhibit. It is true that the allegations of a pleading are controlled by the statements of the instrument upon which it is founded. Hines v. Driver, 100 Ind. 315, and auth. cited p. 317. It is also true that mere descriptive words are regarded as simply describing the person. Jackson School Tp. v. Farlow, 75 Ind. 118, see auth. cited p. 123. This doctrine applies to leases as well as to other instruments. Wood Landlord and Tenant, 203. The rule is firmly engrafted in our law, but it is not easy to find any real ground for it in this country, where there are no titles, designating rank or condition in life. In England there was reason for the rule; here there is none. The better doctrine would be that the words annexed to the name may be explained by extrinsic evidence; but the rule has been too long and too firmly settled to be shaken now. While accepting the general rule to be that stated, the American authorities agree that, if the contract itself shows that the words were not used as merely descriptive of the person, they will not be so regarded, but will be assigned their real meaning. In the instrument before us it clearly appears that Marshall was the agent of the lessor, and acted as such, for we find this recited: "That the said Marshall, agent as aforesaid, has rented to Madison and Monroe Avery." There are other provisions in the instrument clearly showing that Marshall executed the lease as the agent of Dougherty, and we have no doubt that it should be treated as having been executed by him, and that the improper description of the lessor in the introductory clause of the lease must be attributed to the unskilfulness of the draftsman of the instrument.

The general rule is that a tort can not be made to constitute a defence either by way of set-off or counter-claim. Lovejoy v. Robinson, 8 Ind. 399; Slayback v. Jones, 9 Ind. 470; Shelly v. Vanarsdoll, 23 Ind. 543; Terre Haute, etc., R. R. Co. v. Pierce, 95 Ind. 496, p. 500. If the answer is to be regarded as an attempt to set up a tort by way of counter-claim, as appellee contends, then these authorities are decisively in his favor; the appellants, however, contend that the answer does not count upon a trespass, but upon a breach of the covenant for quiet and peaceable enjoyment. The case, therefore, turns upon the question whether the answer pleads a defence founded on breach of a covenant, or pleads a defence arising out of a trespass.

It is true that the lease under examination contains no covenant for quiet enjoyment, but there is nevertheless such a covenant, for, where the demise is for a term certain, the law imports such a covenant into the lease. This principle has solid support in reason. It would be a contradiction to affirm in one breath that the tenant is invested with the right of possession, and in the next affirm that the landlord might deprive him of his right by an entry. The doctrine is,...