Cincinnati Barbed Wire Fence Company v. Chenoweth

• Decision Date: 27 June 1899
• Docket Number: 2,818
• Citation: 54 N.E. 403,22 Ind.App. 685
• Parties: CINCINNATI BARBED WIRE FENCE COMPANY v. CHENOWETH ET AL
• Court: Indiana Appellate Court

54 N.E. 403

22 Ind.App. 685

CINCINNATI BARBED WIRE FENCE COMPANY v. CHENOWETH ET AL

No. 2,818

Court of Appeals of Indiana

June 27, 1899

Rehearing denied Oct. 4, 1899.

From the Marion Circuit Court.

Reversed.

John B Sherwood, for appellant.

John F Carson and Charles N. Thompson, for appellees.

OPINION

ROBINSON, J.

Appellant brought suit on the following instrument:

"$ 762.50 Indianapolis, Ind., Nov. 3, 1891.

Ninety days after date pay to the order of The United States Steel Company seven hundred sixty-two and 50-100 dollars, value received and charge the same to account of

"The United States Steel Company,

"Daniel A. Chenoweth.

"To David C. Bryan, Bryan's Block, Indianapolis." Indorsed on the back: "David C. Bryan." "The United States Steel Company, by Daniel A Chenoweth." "Cincinnati Barbed Wire Fence Company, by James Lamon, Pr't."

The complaint avers the execution of the draft by Chenoweth individually, its acceptance by Bryan, and that it is a due and unpaid.

Appellee Chenoweth answered in four paragraphs. First, general denial; third, payment; and, second and fourth, special matter of defense. The court found the facts specially, and stated conclusions of law in appellees' favor, and gave judgment against appellant for costs.

The second paragraph of answer alleged that Bryan was president and appellee Chenoweth treasurer of the United States Steel Company, a corporation; that on November 3, 1891, the company being indebted to appellant for goods purchased by it from appellant, the company, by Chenoweth, as treasurer, made its draft for $ 762.50 on Bryan, payable ninety days after date to the order of the steel company; that Bryan accepted the draft, and delivered it to the steel company which company indorsed it to appellant in payment for the goods so purchased; that the draft was signed by the United States Steel Company and Chenoweth as its treasurer, he writing an abbreviation for the word "Treasurer" after his name, in accordance with the custom of the steel company, that being its usual and habitual manner of signing its negotiable instruments; that appellant accepted the draft so indorsed; that the drawee and indorsee of the draft knew at the time that Chenoweth had signed the draft as an officer of the steel company, and in no other capacity; that after the indorsement of the draft to appellant, and after it had passed from the possession and control of the steel company and its officers to the possession of appellant, the draft was altered, without Chenoweth's knowledge, by cutting from the end thereof the letters containing an abbreviation of the word "Treasurer" after the name of Chenoweth on the face of the draft, thereby causing it to appear to be drawn by Chenoweth as an individual, when in fact it was signed by him as an officer of the steel company, and with the purpose of binding the company, and without any intention of creating any personal liability in his individual capacity, as was well known to appellant; that the draft sued on is the draft so altered. All the allegations of the fourth paragraph of answer of Chenoweth are contained in the second paragraph. Neither of the four paragraphs of answer was verified.

It is argued by counsel that the court erred in its conclusions of law upon the special findings of facts, in overruling appellant's motion for judgment on the special finding, and in overruling the motion for a new trial. The basis of the motion for a new trial is that the decision of the court is contrary to law, and that the court erred in admitting in evidence all testimony of appellees in support of the unverified special answer of Chenoweth, and in overruling the motion of appellant to strike out certain testimony.

The second and fourth paragraphs of answer deny the execution of the draft as averred in the complaint, and, as they are not verified they amount to no more than the general denial. It has been held that such a plea, without verification, is the equivalent of the general denial, and nothing more, and that, when such a plea and the general denial are pleaded together, it was harmless error to sustain a demurrer to the former, while the latter, under which exactly the same evidence was admissible, remained. Ralston v. Moore, 105 Ind. 243, 4 N.E. 673; McNeer v. Dipboy, 14 Ind. 18; Wade v. Mussleman, 14 Ind. 362; Hill v. Jones, 14 Ind. 389. It is true, it is said in Boots v. Canine, 94 Ind. 408, that pleadings not sworn to shall have the same effect as pleadings sworn to. But in a later case it is said that that doctrine was true, applied to that case, and perhaps under all other circumstances, except where the execution of a written instrument is denied. Ralston v. Moore, supra.

It is argued by counsel for appellees that the failure of appellant to move to reject these unverified pleas waived the verification, and that by reason of such waiver the issue of non est factum was raised as fully as it would have been had the answers been verified. The argument of counsel that a failure to move to reject an unverified plea waives the verification is correct, as applied to complaints, pleas to the jurisdiction, pleas in abatement, and all dilatory pleas. The proper practice in all such cases is to move to reject the pleading, and if the party goes to trial without objection, the verification is waived. The authorities cited by counsel all refer to such pleadings, and not to pleas of non est factum. Thus in State, ex rel., v. Ruhlman, 111 Ind. 17, 11 N.E. 793, the court was considering a plea in abatement; in Toledo, etc., Works v. Work, 70 Ind. 253, a plea in abatement; in Indianapolis, etc., R. Co. v. Summers, 28 Ind. 521, a plea in abatement; in Beeson v. Howard, 44 Ind. 413, a plea in abatement; in Vail v. Rinehart, 105 Ind. 6, 4 N.E. 218, a plea in abatement; in Pudney v. Burkhart, 62 Ind. 179, a petition for a writ of mandate; Sutherland v. Hankins, 56 Ind. 343, complaint to contest a will; in Decker v. Gilbert, 80 Ind. 107, a complaint to enforce a judgment; Buchanan v. Logansport, etc., R. Co., 71 Ind. 265, a plea in abatement; Turner v. Cook, 36 Ind. 129, a complaint to contest a will; in Dawson v. Vaughan, 42 Ind. 395, a plea in abatement; in Lange v. Dammier, 119 Ind. 567, 21 N.E. 749, a complaint to contest a will. The statutes of this State, as will be seen further along, formerly made no distinction between pleas in abatement and pleas of non est factum. As long as both were included in the same section of the statute, they were governed by the same rules. But counsel have cited us to no authority, and we know of none, where the same rule has been held to apply to the two classes of pleadings since the legislature distinguished between the two.

In the case of Hagar v. Mounts, 3 Blackf. 57, the court said: "Where the parties go to trial on the general issue without its being sworn to, the defendant is presumed to rely on some other defense than a denial of the note. But no such presumption can exist, in the case of a special plea denying the execution of the note. The plaintiff need not go to trial on the special plea unless it be sworn to, but if he does, the same proof will be admissible as if the affidavit had been made. Considering the pleas in this case, therefore, as regularly before the court, the evidence in their support, if it tended to show a valid defense, should not have been rejected." See also M'Cormick v. Maxwell, 4 Blackf. 168. This was the common law rule--that a plea of non est factum, not under oath, put in issue, and compelled the plaintiff to prove, the execution of the instrument sued on. Evans v. Southern, etc., Co., 18 Ind. 101.

The case of Hagar v. Mounts, 3 Blackf. 57, was decided under section 21 of the practice act of 1824, which provided, "No plea in abatement, plea of non est factum, non-assignment, nor any other plea, replication or other pleadings denying or requiring proof of the execution, or assignment of any bond, bill, release or other instrument of writing, which is the foundation of any suit, or defense, and is specially set forth in the declaration, plea, or other pleadings, shall be received, unless supported by oath or affirmation." R. S. 1824, p. 292. The above section was continued in the Revised Statutes of 1831 and 1838. R. S. 1831 p. 403; R. S. 1838 p. 449. These statutes did not change the common law rule as to pleas of non est factum, and the provision was that such a plea should not be received unless supported by oath or affirmation. All such pleadings were put in the same class, and the object of verification was to prevent the filing of a pleading for the mere purpose of delay. But in the code of 1843 the statute was divided, as follows:

"Sec. 200. Pleas to the jurisdiction of the court, and pleas in abatement, and all dilatory pleas which do not involve the merits of the action, shall not be received by any court, unless the truth thereof be verified by oath or affirmation."

"Sec. 216. The plea of non est factum, non-assignment, or any other plea, replication, or other pleading, denying or requiring proof of the execution or assignment of any bond, bill, release or other instrument in writing, which is the foundation of any suit or defense, and which is specially set forth as such in the declaration, plea, or other pleadings, shall not impose the necessity of such proof, unless verified by oath or affirmation." R. S. 1843, pp. 706, 711.

Section 216, supra, is found in the code of 1852. 2 R. S 1852, section 80, p. 44. And section 200, supra, was continued in force by section 802 of the code of 1852. 2 R. S. 1852, p. 224. Indianapolis, etc., R. Co. v. Summers, 28 Ind. 521. The legislature thus distinguished between pleas required to be verified to show good faith on...