Duffy v. England

• Citation: 96 N.E. 704,176 Ind. 575
• Decision Date: 05 December 1911
• Docket Number: 22,084
• Parties: Duffy et al. v. England
• Court: Indiana Supreme Court

96 N.E. 704

176 Ind. 575

Duffy et al. v. England

No. 22,084

Supreme Court of Indiana

December 5, 1911

From Newton Circuit Court; Charles W. Hanley, Judge.

Action by Charles England against Michael Duffy and others. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p 590.

Reversed.

Daniel Fraser, William Isham and William Darroch, for appellants.

Emory B. Sellers, Hume L. Sammons and Charles M. Snyder, for appellee.

OPINION

Morris, C. J.

Action by appellee against appellant on contract. A demurrer to the complaint, for insufficient facts, was overruled. Six paragraphs of answer were filed, to each of which plaintiff demurred. Before there was a ruling on the demurrers defendants withdrew their first and third paragraphs. The court sustained plaintiff's demurrers to the remaining paragraphs. Defendants declined to plead further, and elected to stand on their remaining paragraphs of answer, and their exceptions to the action of the court in sustaining the demurrers thereto. Judgment was rendered for plaintiff for $ 555, from which this appeal is prosecuted.

The errors assigned here are the overruling of the demurrer to the complaint, and the sustaining of plaintiff's demurrer to each paragraph of answer.

The complaint avers that plaintiff was engaged in the business of selling grain, on commission, in the city of Baltimore, Maryland, under the name of Charles England & Co., and defendants were partners, doing business under the firm name of Duffy & Harrington, at Otterbein, Indiana, and engaged in buying and selling grain; that in August, 1907, defendants shipped several carloads of oats to Baltimore, billed to themselves, and attached to the bills of lading drafts on plaintiff, in the aggregate sum of $ 3,900, and forwarded them to a Baltimore bank; that plaintiff refused to honor the drafts, and thereupon, after negotiations between plaintiff and defendants, three of the drafts were reduced in amount, and accepted and paid by plaintiff, but he refused to honor the other four, unless further reductions were made, because, as plaintiff informed defendants, the aggregate amount of the drafts exceeded the aggregate value of the oats; that thereupon defendants telegraphed to plaintiff to

"Handle seven cars. If we have overdrawn on you, make draft on us."

That on the receipt of this, plaintiff paid the remaining four drafts; that the aggregate amount paid on the seven drafts was $ 3,681.72, which sum was paid to defendants as an advancement or loan on the grain, until it could be sold, and was not paid as the purchase price of the oats; that plaintiff never purchased the oats, and never received them for any other purpose than to sell them on commission for the benefit of defendants.

It is alleged that when the oats arrived they were damp, musty, of light weight and stained, and were not marketable; that plaintiff caused them to be handled and dried, so that they could become graded and marketable; that from time to time thereafter plaintiff received various bids for the oats, which he submitted to defendants, but they refused to authorize plaintiff to sell the oats on the bids received. Plaintiff continued submitting to defendants bids received by him, until November 29, 1907, when he notified defendants that unless $ 500 was paid by December 3, 1907, he would proceed to sell said oats, for defendant's account and risk, on the open market at Baltimore; that said sum represented the excess of the amount paid on the drafts above the market value of the oats at that time; that defendants failed to pay the $ 500, or any part thereof, and on December 3, 1907, plaintiff did sell the oats for the highest price obtainable therefor; that the net proceeds of the sale amounted to $ 3,138.35. An itemized statement of the gross amount received at the sale, and the freight, inspection, insurance, storage, commission, etc.--expenses paid therefrom--are set forth in the complaint.

The complaint further alleges that plaintiff has paid on the drafts $ 542.37 more than the net proceeds of the sale, for which, together with interest, he demands judgment.

The complaint was sufficient to repel a demurrer.

A factor who has made advances on the credit of goods consigned to him for sale has a lien thereon for the sums advanced, and has the right to sell enough thereof to satisfy the lien, and, after the advancements are made, the factor is not bound to obey the subsequent instructions of his principal, as to the sale. And if the factor demands repayment of the sums advanced, and the principal refuses payment, he may, after reasonable notice, sell enough of the property to satisfy his lien, although in so doing he violates his principal's instructions. And if the sale is made in good faith, for the best price obtainable, and the proceeds thereof are not sufficient to satisfy the lien, the principal is liable for the amount of the deficit. Mooney v. Musser (1873), 45 Ind. 115; Holderman v. Manier (1885), 104 Ind. 118, 3 N.E. 811; Johnson v. Clark (1898), 20 Ind.App. 247, 50 N.E. 762; Shaw v. Ferguson (1881), 78 Ind. 547; Brown v. M'Gran (1840), 14 Pet. 479, 10 L.Ed. 550; Davis v. Kobe (1886), 36 Minn. 214, 30 N.W. 662, 1 Am. St. 663; 19 Cyc. 127.

Error, if any, in sustaining the demurrer to the fifth paragraph of answer, is waived by appellants failing properly to present it in the brief.

The fourth paragraph of answer is a plea in confession and avoidance, which also contains the allegation that defendants deny all the allegations of the complaint. As a plea in confession and avoidance, the answer is not sufficient to repel a demurrer; but counsel for appellants say that, disregarding all other averments, the answer is good as a general denial.

A paragraph of answer, to be sufficient, must pursue a single, definite theory. It is to be judged by its general scope and tenor. It cannot perform a double office. It cannot be good as a denial and also as a plea in confession and avoidance. Racer v. State, ex rel. (1892), 131 Ind. 393, 31 N.E. 81; Nysewander v. Lowman (1890), 124 Ind. 584, 24 N.E. 355, and cases cited.

The obvious theory of the pleading is that of confession and avoidance, and being insufficient on that theory, the court did not err in sustaining the demurrer.

The second paragraph of answer is pleaded as a set-off, and the sixth as a counterclaim. The ground of demurrer to each paragraph is that it does not state facts sufficient to constitute a cause of defense. Appellants' counsel earnestly contend that the court erred in sustaining the demurrer to each of said paragraphs.

The second paragraph alleges that on December 3, 1907, plaintiff converted to his own use approximately 8,000 bushels of oats owned by defendants, which were then of the value of seventy cents a bushel; that afterwards defendants demanded of plaintiff the value of the property converted; that waiving the tort, defendants pleaded in assumpsit, that plaintiff was indebted to them at the commencement of the action in the sum of $ 5,000, from which certain credits are deducted, leaving a balance of approximately $ 1,500, which they pray may be set off against any sum found due to plaintiff. This paragraph affirmatively shows that the matters pleaded therein were connected with plaintiff's cause of action. and were a part of the transaction forming the basis thereof.

The sixth paragraph alleges that on August 27, 1907, defendants consigned to plaintiff, for sale at Baltimore, 8,000 bushels of oats; that plaintiff advanced to them $ 3,675 on account thereof; that plaintiff received the oats at Baltimore on September 12, 1907, to be sold by him on the open market; that when received the oats were of the value of $ 4,200, on said market; that plaintiff failed to sell said oats, but on the contrary, without authority from defendants, stored them; that afterwards, on October 21, 1907, plaintiff agreed, in a writing executed by him, and which is set out as an exhibit, that he would hold the oats until defendants ordered them sold, and would make no disposition thereof until directed so to do by defendants; that afterwards, on December 3, 1907, plaintiff, without receiving any instructions from defendants, and without their knowledge or consent, and in violation of said written agreement, sold the oats on the open market for fifty cents a bushel; that when sold, a general panic was prevailing throughout the country, and, as a result thereof, market values of oats were temporarily depressed at Baltimore; that within sixty days thereafter the Baltimore market price for oats of like quality was sixty cents a bushel; that had plaintiff waited for instructions, as provided for in the written agreement, the oats would have brought sixty cents a bushel on the Baltimore market; that by reason of the unauthorized sale defendants were damaged in the sum of $ 800, which they ask to recoup against anything that may be found due plaintiff on his complaint, and that they have judgment for the residue. It is averred in this paragraph that the consignment alleged is the same transaction sued on by plaintiff in his complaint.

Appellee attempts to meet the error assigned in regard to the sustaining of the demurrer to the second paragraph, by the proposition that the pleading is insufficient, because it does not deny, confess nor avoid the allegations of the complaint. The same proposition is asserted with reference to the sixth paragraph, and for that reason, and because the allegations of the answer are not as broad as those of the complaint, it is claimed the lower court did not err.

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