Clark v. Gramling

• Decision Date: 23 May 1891
• Citation: 16 S.W. 475,54 Ark. 525
• Parties: CLARK v. GRAMLING
• Court: Arkansas Supreme Court

16 S.W. 475

54 Ark. 525

CLARK v. GRAMLING

Supreme Court of Arkansas

May 23, 1891

APPEAL from Greene Circuit Court, E. F. BROWN, Special Judge.

Judgment reversed and cause remanded.

B. H Crowley for appellant.

1. Parol contemporaneous evidence is inadmissible to vary the terms of a valid written agreement. 24 Ark. 210; 13 id., 449; 15 id., 543; 11 Johns., 201; Smith, Cont., 94; 36 Ark. 487; 37 id., 110.

2. The answer setting up a release by H. C. Gramling does not constitute a defense. 33 Ark. 572; 2 Gr. Ev., sec. 28; 2 Story, Cont., 978; 5 East, 230; 4 Gill & J., 305; 3 N.H. 318; 26 Me. 88; 20 Conn. 559.

3. The fact that one of the makers and payees is the same person does not render the note void. Tied. on Com. Paper, sec. 20. The note is joint and several, and appellee is liable for the whole debt. Mansf. Dig., sec. 4944.

L. L Mack for appellee.

Going to trial on the issues operates as a waiver of all objections raised by demurrer. 17 Ark. 403; 53 id., 56; ib., 593; Mansf. Dig., secs. 5043-4-5; Bliss on Code Pl., sec. 417; 30 Ark. 312; 39 id., 258. It is equivalent to pleading over, and is an abandonment of the supposed error in overruling the demurrer, and an appeal will not lie without a motion for a new trial. The demurrer being general, if any of the paragraphs set up a good defense, the demurrer was properly overruled. Bliss on Code Pl., sec. 417; 30 Ark. 312.

OPINION

MANSFIELD, J.

Clark, as administrator of the estate of Witcher, brought this action against R. F. Gramling, Henry C. Gramling and others, to recover a balance due upon a promissory note, executed by the defendants on the 30th day of September, 1876, and payable twelve months after date "to the order of John Clark and Henry C. Gramling, administrators of William A. Witcher, deceased." The complaint states the amount and date of a number of payments which are credited upon the note, and prays judgment for the sum remaining unpaid. A judgment by default was taken against all the defendants except the appellee, R. F. Gramling. An answer was filed by him consisting, as abstracted, of four paragraphs, stating the following as matters of defense: (1.) A denial "that he promised to pay plaintiff the sum mentioned in the complaint in manner and form as therein alleged." (2.) That he executed the note sued on under an agreement between himself and H. C. Gramling, one of the payees, that he was to pay only one-half the sum for which the note was given and that said It. C. Gramling should pay the other half; and that the plaintiff assented to this agreement at the time the note was made. (3.) That he paid half the amount of the note, and, about November, 1880, "was by the said H. C. Gramling, for a valuable consideration, fully released from further liability" thereon. (4.) That Henry C. Gramling, one of the makers of the note, and Henry C. Gramling, one of the payees, "is one and the same person, and that no action at law can be maintained thereon." A demurrer to the answer was overruled, and the plaintiff excepted. The cause was then submitted to a jury for trial on the issues formed by the answer; and, a verdict having been returned for the defendant, judgment was rendered accordingly, and the plaintiff has appealed.

I. Appellee contends that appellant waived the objection raised by his demurrer by going into trial. This position, so far as we are advised, is sustained by no authority. McIlroy v. Buckner, 35 Ark. 555; Clark v. Hare, 39 Ark. 258; McWhorter v. Andrews, 53 Ark. 307, 13 S.W. 1099. Section 417 of Bliss on Code Pl., cited by counsel, refers only to a waiver by pleading over after demurrer to the complaint. The rule there stated can have no application where the demurrer is to an answer requiring no reply, and where, as in this case, there is no pleading over. If the facts stated in the answer constituted no defense, the defendant was not entitled to a judgment on the verdict; and the plaintiff did not waive his right to question the sufficiency of the facts on appeal by participating in the trial. Boone, Code Pl., sec. 117; Newman, Pl. & Pr., 518.

II. The demurrer to the answer reached back to the complaint; and the plaintiff was not therefore prejudiced by the ruling excepted to, if his own pleading should have been adjudged bad. Wood v. Terry, 30 Ark. 385. But the only objection to the complaint, apparent upon its face, is that it does not join one of the payees of the note as a party plaintiff. This defect was waived by filing the answer. Newman, Pl. & Pr., 58, 106, 214, 215; Boone, Code Pl., secs. 112, 263; Bliss, Code Pl., secs. 411, 417; Mansf. Dig., secs. 5028, 5031; McCreary v. Taylor, 38 Ark. 393.

III. There is no contention here that either the first or the second paragraph of the answer states a valid defense. The first does not deny any fact alleged in the complaint; and the second sets up a contemporaneous parol agreement between the parties, contradicting the terms of the written contract on which the suit is founded. These two paragraphs, though numbered separately in the appellee's abstract, were probably intended to be taken as one defense. But whether considered together or separately, they are so obviously insufficient that comment upon them is unnecessary. Boone, Code Pl., sec. 61; Joyner v. Turner, 19 Ark. 690; Borden v. Peay, 20 Ark. 293; Roane v. Green, 24 Ark. 210.

IV. The defendant does not allege, by the third paragraph of his answer, that he has made any payment in addition to the sums credited on the note, nor that the sum demanded has ever been paid. But he avers that he paid one-half of the amount of the note and was, for a valuable consideration, released from further liability by H. C. Gramling, one of the payees. Whether the release was by parol or in writing, or in what the consideration consisted, is not stated. And it would not be an unfair criticism upon the answer to say that this part of it states legal conclusions, and not the facts from which such conclusions are to be deduced. This method of pleading is not authorized by the code of practice, and should be discouraged by the courts as tending to produce uncertain and immaterial issues, and thus to delay and embarrass the administration of justice. Mansf. Dig., sec. 5033; Newman, Pl. & Pr., 544; McIlroy v. Buckner, 35 Ark. 555; Keith v. Freeman, 43 Ark. 296. But it will probably be more in harmony with previous decisions of this court to rule that objection to the answer on the ground now suggested should have been made by motion to make it more definite, and not by demurrer. McDermott v. Cable, 23 Ark. 200; Ball v. Fulton Co., 31 Ark. 379; McCreary v. Taylor, 38 Ark. 393. We shall therefore treat the third paragraph as not fatally defective because of the general and uncertain nature of its allegations; and presuming that it intends to plead, not a mere parol agreement for a release, but a release executed in writing, we will inquire whether it sets up a bar to the plaintiff's action. This question must be answered in the negative unless H. C. Gramling had power to execute the release thus pleaded.

The plaintiff and H. C. Gramling were joint administrators of Witcher's estate; and the terms of the note indicate that it was taken by them in a representative capacity. Whether it was made in consideration of a debt accruing to them as representatives of the deceased, or for a debt due to the latter, is not shown. Nor is it shown whether H. C. Gramling ever had possession of the note. In Smith v. Whiting, 9 Mass. 334, it was held that one of two executors could not assign a negotiable promissory note made to them, as executors, for a debt due to their testator. The court said that each of the promisees had but a moiety of the note, and could not therefore by his indorsement transfer either the whole or his own moiety.

In the case of De Haven v. Williams, 80 Pa. 480 co-executors deposited money of their testator with bankers to their joint account. The bankers, having failed, entered into an agreement with their creditors by which all their property was conveyed to a trustee for the creditors, and the bankers were to be released from the debts they owed, upon all the creditors signing the agreement. The agreement was signed by all the creditors, but only one of Williams' executors signed for his estate. And it was held that this did not release the claim of the estate against the bankers. The opinion of the court places this decision upon the ground that the deposit of the money to the joint account of the executors was a precautionary measure for the protection of each executor against the liability which would result from a loss of the funds through the negligence or misconduct of his co-executor. This precaution, the court said, would be futile if the...