Duffy v. England

• Decision Date: 05 December 1911
• Docket Number: No. 22,084.,22,084.
• Parties: DUFFY et al. v. ENGLAND.
• Court: Indiana Supreme Court

176 Ind. 575

96 N.E. 704

DUFFY et al.

v.ENGLAND.

No. 22,084.

Supreme Court of Indiana.

Dec. 5, 1911.

Appeal from Circuit Court, Newton County; Charles W. Hanley, Judge.

Action by Charles England against Michael Duffy and another. From a judgment for plaintiff, defendants appealed. Reversed, with instructions.

Transferred from the Appellate Court under Burns' Ann. St. 1908, § 1405.

Daniel Fraser and William Isham, for appellants. Emory B. Sellers, Hume L. Sammons, and Chas. M. Snyder, for appellee.

MORRIS, C. J.

Suit 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 the plaintiff demurred. Before there was a ruling on the demurrers defendants withdrew their first and third paragraphs. The court sustained appellee's demurrers to the remaining paragraphs, and appellants 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 sustaining 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, Md., under the name of Charles England & Co., and defendants were partners, doing business under the firm name of Duffy & Harrington, at Otterbein, Ind., and engaged in buying and selling grain; that in August, 1907, defendants shipped several car loads of oats to Baltimore, billed to themselves, and attached drafts on plaintiff to the bills of lading in the aggregate sum of $3,900 and forwarded the same 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, and thereupon defendants telegraphed plaintiff to “handle seven cars; if we have overdrawn on you, make draft on us.” On the receipt of this, plaintiff paid the remaining four drafts. The aggregate amount paid on the seven drafts was $3,681.72, which sum was paid defendants as an advancement or loan on the grain until the same could be sold, and was not paid as purchase price of the oats; that plaintiff never purchased the oats, and never received it, for any other purpose than to sell it for the benefit of defendants on commission. 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, and did, become graded, and marketable; that from time to time thereafter plaintiff received various bids for the oats and submitted them to defendants, and defendants refused to authorize plaintiff to sell the same on the bids received. Plaintiff continued submitting to defendants bids on the oats received by him, until November 29, 1907, when plaintiff notified defendants that, unless $500 was paid by December 3, 1907, the plaintiff would proceed to sell the same for defendants' account and risk, upon 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. 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 freight, inspection, insurance, storage, commission, etc., expenses paid therefrom, is set forth in the complaint. The complaint further alleges that plaintiff has paid on the draft $542.37 more than the net proceeds of the sale, for which, and interest, he demands judgment. The complaint was sufficient to repel a demurrer.

[1][2] 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, 45 Ind. 115;Holderman v. Manier (1885) 104 Ind. 118, 3 N. E. 811;Johnson v. Clark, 20 Ind. App. 247, 50 N. E. 762;Shaw, Adm'r, v. Furgason, 78 Ind. 547;Brown v. McGran, 14 Pet. 479, 10 L. Ed. 550;Davis v. Kobe, 36 Minn. 214, 30 N. W. 662, 1 Am. St. Rep. 663; 19 Cyc. 127.

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

The fourth paragraph of answer is a plea in confession and avoidance, which also contains the allegation that the 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.

[4] A paragraph of answer, to be sufficient, must pursue a single, definite theory. It is to be judged by its general scope and tenor.

[5] 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, 131 Ind. 393, 31 N. E. 81;Nysewander v. Lowman, 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. Appellant's counsel earnestly contend that the court erred in sustaining the demurrer to each of the above paragraphs.

The second paragraph alleges that on December 3, 1907, plaintiff took and converted to his own use approximately 8,000 bushels of oats owned by defendants, which were then of the value of 70 cents per bushel; that afterwards defendants demanded of appellee 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 the plaintiff on his complaint. 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 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 the same, but, on the contrary, without authority from defendants, stored them; that afterwards, on October 21st, the plaintiff agreed in a writing executed by him, and which is set out as an exhibit, that he would hold the oats until the 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 50 cents per 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 60 days thereafter the Baltimore market price for oats of like quality was 60 cents per bushel; that, had plaintiff waited for instructions, as provided for in the written agreement, the oats would have brought 60 cents per bushel on the Baltimore market; that, by reason of the unauthorized sale, the 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 neither denies, nor confesses and avoids, 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. Our Code of Civil...