Finch v. McClellan

• Decision Date: 15 February 1921
• Docket Number: No. 10671.,10671.
• Citation: 130 N.E. 13,77 Ind.App. 533
• Parties: FINCH et al. v. McCLELLAN.
• Court: Indiana Appellate Court

77 Ind.App. 533

130 N.E. 13

FINCH et al.

v.McCLELLAN.

No. 10671.^*

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1921.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by Charles McClellan against Samuel N. Finch and another, as partners, wherein, on the named defendant's death before trial, Ira A. Finch was substituted as party defendant. Judgment for plaintiff, and defendants appeal. Reversed, with direction.Lenn J. Oare, of South Bend, for appellants.

Chas. P. Drummond, of South Bend, for appellee.

McMAHAN, J.

This action was commenced by appellee against Samuel N. Finch and Alfred Finch, as partners. Samuel Finch died before trial, and the court ordered that Ira A. Finch, administrator of his estate, be substituted and made a party defendant. Without any amendment being made to the complaint or any supplemental complaint being filed alleging the death of Samuel N. Finch and the appointment of an administrator of his estate, Ira A. Finch, as administrator, appeared and was ruled to file an answer to the complaint. This rule was discharged by filing a demurrer to the complaint for want of facts, with a memorandum attached thereto specifying that the complaint was not sufficient because the administrator was not made a party defendant. The demurrer was overruled and exception saved.

The first paragraph of the complaint alleged that: Samuel and Alfred Finch were partners in the grain business and were doing business under the name of Finch Bros. That on July 19, 1915, plaintiff and defendants entered into a written contract, reading as follows:

“North Liberty, Indiana, July 19, 1915.

Received of Charles McClellan, 1032 bushels and 30 pounds No. 2 red wheat (borrowed) and to be paid for on demand at the market price.

Paid on the above contract $500.

Charles McClellan.

Finch Bros.”

That under the said contract the plaintiff sold and delivered 1,032 bushels and 30 pounds of wheat, and that the defendants agreed to pay plaintiff the market price for said wheat at the time of demand for such payment. That $500 was paid plaintiff at the time of the execution of said contract and to apply thereon. That the plaintiff on May 16, 1917, demanded payment from the defendants of the balance due for said wheat, the market price being $3.20 per bushel, and that defendants refused to pay for said wheat according to the terms of said contract and demanding judgment.

The second paragraph was, in substance, the same as the first.

Each defendant filed a separate answer in two paragraphs, the first paragraph of each answer being a general denial. A demurrer was sustained to the second paragraph of each answer. There was a verdict and judgment against both appellants in the sum of $2,772.35.

Appellants filed a motion for a new trial, the specifications named therein being that the verdict (1) is not sustained by sufficient evidence; (2) is contrary to law; (3) that the court erred in permitting the plaintiff to testify as to certain transactions and conversations with Samuel Finch, and also in admitting and refusing to admit certain other evidence; and (4) in giving and refusing to give certain instructions.

[1] Appellants' first contention is that when the death of a defendant is suggested, and his administrator is substituted, a demurrer will lie unless a supplemental complaint is filed or the original complaint is amended so as to make the administrator a party to the pleading.

In Holland v. Holland, 131 Ind. 196, 30 N. E. 1075, cited by the appellants, the death of one of the defendants was suggested to the court, when his administrator was substituted as a party defendant, and, without filing a supplemental complaint or any amendments being made to the original complaint, he appeared and was ruled to answer. He then filed a demurrer to the complaint, which was sustained. On appeal it was held that this ruling was not error.

In the case now under consideration the administrator filed an answer and there was a trial on the merits. The question for our determination is, not whether it would have been error to have sustained the demurrer, but whether after trial the ruling is reversible error.

Section 350, Burns' 1914, provides:

“The judgment upon overruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appear from the whole record that the merits of the cause have been fairly determined. If a party fail to plead after the demurrer is overruled, judgment shall be rendered against him as upon a default.”

This court, in Vulcan Iron Co. v. Electric Co., 54 Ind. App. 28, 99 N. E. 429, after quoting the above section of the statute, said:

“When a pleading is held sufficient by the court as against a demurrer, the party demurring may stand upon his demurrer and appeal, or he may plead to the merits. If he takes the former course, the only question presented on appeal is the sufficiency of the pleading to which the demurrer was directed, and, in case such pleading is held insufficient on appeal, the judgment will be reversed. If he takes the second course, pleads to the merits and proceeds to final judgment, the objection taken by demurrer may or may not be available to reverse on appeal. If the record does not show affirmatively that such ruling was harmless to the adverse party, the case should be reversed; but if the whole record shows that the case has been fairly determined on its merits, and that the erroneous ruling on demurrer was not prejudicial, the statute quoted requires that the judgment should be affirmed, regardless of such error.”

In Driscoll v. Penrod, 176 Ind. 19, 95 N. E. 313, one of the plaintiffs having died, his administrator was by order of the court substituted as a party plaintiff. On the day set for trial the defendant objected to proceeding with the trial until after an amended or supplemental complaint was filed making the administrator a party plaintiff. The objection was overruled and on appeal the Supreme Court, in sustaining the trial court, said:

“While the better practice in case of the death of a person is to file a supplemental complaint alleging the fact, and praying for the substitution of the personal representative, stating his qualifications, we fail to see wherein appellants were harmed. They did not seek to controvert the fact of the death of decedent, or the fact that a personal representative had qualified, neither did they seek to reopen the issues. *** This statute [section 700, Burns' 1908] was enacted to dispose of such objections as are here raised.”

See, also, Crary v. Kurtz, 132 Iowa, 105, 105 N. W. 590, 109 N. W. 452, 119 Am. St. Rep. 549.

The overruling of the demurrer to the complaint, if erroneous, is not reversible error. The rule is that a cause will not be reversed on appeal for error in overruling a demurrer, when it appears from the whole record that the merits of the cause have been fairly determined. Volker v. State, 177 Ind. 159, 97 N. E. 422.

[2] The second paragraph of answer of each appellant, to which a demurrer was sustained, was no more than an argumentative denial. All evidence that could have been introduced under these answers could have been introduced under the general denial. There was no error in sustaining the demurrer to either of these answers.

[3] The next contention is that the court erred in admitting in evidence the contract sued on, for the reason that the appellee was not a competent witness to prove its execution. Appellant Alfred Finch, who, under the name of Ira A. Finch, is administrator of the estate of Samuel Finch, testified as a witness in behalf of appellants. He testified that his brother Samuel secured the wheat from appellee under the contract; that the contract was entered into by Finch Bros. and appellee; that he was present at the time when it was made and signed and heard the conversation between his brother Samuel and appellee. Its execution having been subsequently proven by appellants, the error, if any, was cured.

Appellants insist that the word “borrowed” renders the contract ambiguous, and that the court erred in refusing to admit certain oral evidence to show whether the transaction was a bailment or a sale.

[4] In considering this question we should keep in mind that the distinction between an obligation to return the specific thing received or of returning something of equal value is the distinction between a bailment and a sale.

As said by the court in Norton v. Woodruff, 2 N. Y. 155, in speaking of the contract there involved:

“Here, however, the contract is in writing. There is no such ambiguity in the terms as requires the aid of extrinsic testimony to explain them, and the rights of the parties must consequently be determined by its language.”

[5] By the contract set out in the complaint Finch Bros. received the wheat for their own use, and expressly agreed to pay appellee the market price therefor when demanded. What right had appellee, under this contract, except to demand the market price and to receive the same in cash, less the $500 already paid? The word “borrowed,” when taken in connection with the other parts of the contract, means nothing more than that Finch Bros. were to have the immediate use of the wheat, and conclusively indicates a sale and fixes the price at the market price at the time of demand instead of the market price on day of delivery.

In Carlisle v. Wallace, 12 Ind. 252, 74 Am. Dec. 207, Wallace placed in the mill of Carlisle 400 bushels of wheat upon the agreement that the latter was at liberty to mix it with his own, convert it into flour when he pleased, sell the flour and appropriate the proceeds to his own use, and whenever Wallace saw fit he had the right to exact from Carlisle the same quantity of the same kind of wheat, or the amount of flour...