Brudi v. Trentman

• Decision Date: 14 October 1896
• Docket Number: 1,799
• Parties: BRUDI v. TRENTMAN
• Court: Indiana Appellate Court

44 N.E. 932

16 Ind.App. 512

BRUDI v. TRENTMAN

No. 1,799

Court of Appeals of Indiana

October 14, 1896

Rehearing denied Dec. 30, 1896.

From the Allen Circuit Court.

Affirmed.

Robert Lowry, for appellant.

Walpole G. Colerick and William E. Colerick, for appellee.

OPINION

LOTZ, J.

On January 27, 1869, the appellant executed his promissory note payable to B. Trentman & Son, a copartnership, of which firm the appellee is the surviving partner. The note was due one day after date and was given for the sum of $ 629.68. This suit was instituted on July 7th, 1890, to recover a balance alleged to be due thereon. The complaint shows that several payments had been made and credited upon the note. The last payment being for $ 400.00 and made on the 3d day of December, 1886.

The defendant (appellant) filed seven paragraphs of answer; the first, fifth, and sixth were afterwards withdrawn, the first being the general denial. Demurrers were sustained to the third and amended fourth, and overruled as to the seventh. A reply was filed and the issues joined were tried by a jury and a special verdict returned, upon which the court rendered judgment for the appellee in the sum of $ 900.78.

The rulings of the trial court in sustaining the demurrers to the third and amended fourth paragraphs of answer are assigned as error in this court.

The second paragraph pleaded the twenty-year statute of limitations. The third paragraph avers in substance that the plaintiff's cause of action did not accrue within twenty years before the bringing of the action, and that as to the $ 400.00 payment set forth in the complaint, made on December 3d, 1886, the same was not made as a part payment; that at the time the payment was made there was nothing due on the note; that the defendant had fully paid the note seventeen years before; that when the payment was made on December 3 1886, the note was outstanding and uncanceled, and that a balance purported to be due thereon, and that a demand was made upon him for the same; that in order to buy his peace and avoid being harassed by litigation he paid the said sum of $ 400.00 to the plaintiff's agent upon a conditional agreement and understanding that the same was to be in full discharge and satisfaction of any supposed or alleged liability on his part to the plaintiff; that the agent was to notify the plaintiff of such agreement, and if the same was not satisfactory to the plaintiff the defendant was to be notified of such non-concurrence; that no notice was ever given defendant that the plaintiff did not concur in the agreement, although three years had elapsed since making the same.

The amended fourth paragraph contains substantially the same averments as the third, the only difference being that in addition to buying his peace the same facts are pleaded as an accord and satisfaction.

The seventh paragraph of the answer is very long, but in substance it contains the same averments as the third and amended fourth, and the facts are pleaded as a compromise and settlement in full. No motion to separate the different defenses in this paragraph was made.

A demurrer was overruled to the last paragraph.

We do not find it necessary to determine the sufficiency of these answers. The seventh paragraph having been held good, and not having been withdrawn, all the evidence admissible under the third and amended fourth (assuming them to be good) could have been given under it.

It is harmless error to sustain a demurrer to a good paragraph of answer when the same defense can be made under another paragraph. Kniss v. Holbrook, ante, 229.

At the time the court ruled on the demurrers to the third paragraph and the amended fourth, the seventh paragraph had not yet been filed. Appellant's learned counsel insist that as this paragraph had not been filed when the ruling was made the error is not harmless; that the trial court in making the ruling complained of could not have been influenced by the fact that there was another paragraph under which the same defense could be made.

It may be true that at the time the trial court made the rulings it was not influenced by the presence of the other paragraphs. But whether a ruling is hurtful or harmless must be determined by a consideration of the whole record. When the cause came to trial the appellant could have made the same proof under the seventh paragraph as he could have made had the third and amended fourth remained in.

The ruling should not be considered as standing alone, but should be considered in connection with the whole record. Oftentimes an erroneous ruling is rendered harmless by the subsequent acts of the parties. Had the appellant stood on the first rulings, a different question might have been presented. But he voluntarily chose to file another answer which was held good and under which he could have made, and no doubt did make, the same proof as he could have made under the other paragraphs. It would be a travesty on justice to hold the rulings reversible error under such circumstances.

The appellant's motion for a venire de novo was overruled and this ruling is one of the errors assigned.

There were several causes assigned in this motion only two of which are discussed by appellant's counsel. One is that the verdict is ambiguous and uncertain; and the other is that the findings consist of evidence only and even that not relating to any material issue in the case. The other causes are waived by a failure to discuss them.

That the appellant executed the note, and that he made a payment of $ 400.00 on December 3, 1886, were conceded facts in the case and were so found by the jury.

The verdict finds "that the defendant on ...